Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there shall be maintained at the office of the Certificate Registrar a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar may prescribe, the Certificate Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (and hereby agrees to act) as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register. (b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Act, and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If such a transfer is to be made without registration or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D hereto, and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as such), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee or the Certificate Registrar is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificates under the Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate Registrar and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. (c) None of the Certificates except for the Class ___, Class ___, Class ___, Class ___, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126 (d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund. (e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest. (f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive. (g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing. (h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates. (i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Amresco Commercial Mortgage Funding I Corp)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeServicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___C, Class ___, Class ___, Class ___, Class ___ and Class ___ P or Residual Certificate (the “Private Certificates”) shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Private Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, (ii) the transfer of any such Class C, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Class C, then Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorTrustee, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's ’s prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Private Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Private Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Residual Certificate by the Depositor to an “accredited investor” within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___C, Class ___, Class ___, Class ___, P or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with “Plan Assets” of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. § 2510.3-101 (“Plan Assets”), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee and the Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Servicer, the Trustee, the NIMS Insurer or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with (i) the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor, (ii) the transfer of any such Class C, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any such Class C, Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that it is not purchasing with Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. For so long as the Supplemental Interest Trust is in existence, each beneficial owner of a Class A or Subordinate Certificate Registrar shall require the prospective transferee of or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of such the Class A or Subordinate Certificate, as applicable, or interest therein, that either (i) it is neither (A) not a Plan nor or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”) or (ii)(A) in the case of a Class A or Subordinate Certificate rated, at the time of purchase, not lower than “BBB-” (or its equivalent) by a Rating Agency, the beneficial owner is an accredited investor within the meaning of Prohibited Transaction Exemption 2002-41, as amended from time to time (the “Exemption”) and (B) the acquisition and holding of such Certificate and the separate right to receive payments from the Supplemental Interest Trust are eligible for the exemptive relief available under Prohibited Transaction Class Exemption (“PTCE”) 84-14 (for transactions by independent “qualified professional asset managers”), 91-38 (for transactions by bank collective investment funds), 90-1 (for transactions by insurance company pooled separate accounts), 95-60 (for transactions by insurance company general accounts) or 96-23 (for transactions effected by “in-house asset managers”). Each beneficial owner of a Class M or Class B Certificate or any interest therein that is acquired after the termination of the Supplemental Interest Trust shall be deemed to have represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”), (ii) it has acquired and is holding such certificate in reliance on the Exemption, and that it understands that there are certain conditions to the availability of the Exemption, including that the certificate must be rated, at the time of purchase, not lower than “BBB-”(or its equivalent) by S&P, Fitch or ▇▇▇▇▇’▇, and the certificate is so rated or (iii)(1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an “insurance company general account,” as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of (i1) an affidavit from the proposed transferee substantially and agreement (a “Transfer Affidavit and Agreement”), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them, and (2) a certificate from the proposed Transferor to the effect that it does not have knowledge that any statements made in the Transfer Affidavit and Agreement are false.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a “pass-through interest holder” within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a “pass-through interest holder.”
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a sell such Residual Certificate to a Disqualified Organization purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any other Person will not cause Affiliate of the Trust Fund to cease to qualify as a REMIC or cause Certificate Registrar. The proceeds of such sale, net of the imposition of a tax upon the Trust Fund.
commissions (e) Subject which may include commissions payable to the preceding subsectionsCertificate Registrar or its Affiliates), upon surrender for registration of transfer expenses and taxes due, if any, shall be remitted by the Certificate Registrar to such purported Transferee. The terms and conditions of any Certificate at sale under this clause (iii)(B) shall be determined in the office sole discretion of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, not be liable to any Person having an Ownership Interest in the name a Residual Certificate as a result of the designated transferee or transferees, one or more new Certificates its exercise of the same Class of a like aggregate Percentage Interestsuch discretion.
(fiv) At The Trustee shall make available to the option Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual Certificate and (B) as a result of any Holderregulated investment company, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.real estate inves
Appears in 1 contract
Sources: Pooling and Servicing Agreement (GE-WMC Asset-Backed Pass Through Certificates, Series 2005-1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate or Class R-X Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the ▇▇▇▇ ▇▇▇.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Trustee that the purchase and holding of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, any other servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated by the preceding sentence, the shall not be an expense of such persons and upon which such persons may rely. Any purchaser of a Class A Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ a Mezzanine Certificate shall be deemed to have represented by its acquisition made such certification unless it delivers such Opinion of such Certificate, that it is neither (A) a Plan Counsel. Neither an Opinion of Counsel nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or certification will be required in connection with assets of a Plan. - 119 - 126
(d) No the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, any other servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent Trustee, shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates. In addition, but with respect to each Residual Certificate, the Trustee or Holder thereof may exchange, in the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
manner described above, (i) All Certificates surrendered the Class R Certificate for transfer two separate Certificates, each representing such Holder's respective Percentage Interest in the Class R-I Interest and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Class R-II Inte
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mortgage Sec as-BCKD Pass-THR Cert Ser 2003-7)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___Private Mezzanine Certificate, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate (the “Private Certificates”) shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Private Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Class CE, then Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's ’s prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Private Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___If a transfer of an Ownership Interest in the Private Mezzanine Certificates is to be made without registration under the 1933 Act (other than in connection with the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor), Class ___then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder’s prospective transferee (which in the case of the Book Entry Certificates, the Certificateholder and the Certificateholder’s prospective transferee shall be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Private Mezzanine Certificate, Class CE Certificate, Class P Certificate or Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Residual Certificate by the Depositor to an “accredited investor” within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with “Plan Assets” of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. § 2510.3-101 (“Plan Assets”), as named fiduciary ofcertified by such transferee in the form of Exhibit G, as trustee of(or, or with assets in the case of a PlanBook Entry Certificate, such transferee shall be deemed to represent that it is not a Plan or acquiring with Plan Assets), unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Guarantor, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with (i) the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any such Class CE, Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case, the Depositor or any Affiliate thereof shall have deemed to have represented that it is not purchasing with Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Certificate Registrar or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner shall require be treated as the prospective transferee beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any Class ___such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, Class ___the Master Servicer, Class ___the Trustee, Class ___the NIMS Insurer, Class ___ the Guarantor and the Trust Fund from and against any and all liabilities, claims, costs or Class ___ Certificate to certify, and each prospective transferee expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who has or who acquires any Class ___, Class ___, Class ___, Class ___ or Class ___ Ownership Interest in a Residual Certificate shall be deemed to have represented by its the acceptance or acquisition of such Certificate, that it is neither Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to Permitted Transferee and shall promptly notify the contrary contained herein, prior to registration Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a “Transfer Affidavit and Agreement”), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and Permitted Transferee.
(ii) Each Person holding or acquiring an Ownership Interest in a certificate from the transferor substantially Residual Certificate, by purchasing an Ownership Interest in the form attached as Exhibit F-2 heretosuch Certificate, agrees to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in give the Certificate Register Registrar written notice that it is a “pass-through interest holder” within the meaning of any transfertemporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, sale if it is, or other disposition of is holding an Ownership Interest in a Residual Certificate to on behalf of, a Disqualified Organization or an agent (including a broker, nominee or middleman) “pass-through interest holder.” The Certificate Registrar shall register the Transfer of a Disqualified Organization or to a Non-U.S. Person, such registration any Residual Certificate only if it shall be deemed to be of no legal force or effect whatsoever have received the Transfer Affidavit and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect Agreement and all of such Residual Certificateother documents as shall have been reasonably required by the Certificate Registrar as a condition to such registration. If any purported transfer In addition, no Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, by net of the commissions (which may include commissions payable to the Certificate Registrar or its acceptance thereofAffiliates), expenses and taxes due, if any, shall be deemed for all purposes remitted by the Certificate Registrar to have consented such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person will such provisions shall not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions shall not cause any Trust Fund REMIC to cease to qualify as a REMIC and shall not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer and the Guarantor a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.t
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Securities Administrator shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Securities Administrator in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates and the Uncertificated Interest in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Securities Administrator shall provide for the registration of Certificates and the Uncertificated Interest and of transfers and exchanges of Certificates and the Uncertificated Interest as herein provided. The Trustee is hereby Securities Administrator will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, the Seller, the Servicer, the Master Servicer, the Securities Administrator and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Securities Administrator shall at any time not be the Certificate Registrar, the Securities Administrator shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register. The Certificate Register in respect of the Uncertificated Interest shall contain a statement that transfers of the Uncertificated Interest to a Disqualified Organization are prohibited as provided in this Agreement.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Non-Offered Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a Definitive Certificatetrust, then the depositor of which is an affiliate of the Seller), the Trustee, the Securities Administrator and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: either (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, and F-1 or (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorSeller, the Trustee, the Servicer, the Trustee Certificate Registrar, the Master Servicer, the Securities Administrator or the Certificate Registrar in their respective capacities as suchTrust Fund), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee Seller, the Certificate Registrar, the Securities Administrator or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Non-Offered Certificate shall, and does hereby agree to, indemnify the Trustee, the Seller, the Depositor, the Certificate Registrar Registrar, the Securities Administrator and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(ci) None No transfer of an ERISA-Restricted Certificate shall be made unless the Securities Administrator and the Trustee shall have received in the form attached hereto as Exhibit F-2 or Exhibit G, as applicable, either (i) a certification letter from the transferee of such Certificate, acceptable to and in form and substance satisfactory to the Securities Administrator and the Trustee, to the effect that such transferee is not a Plan or a person using the assets of any such Plan, which representation letter shall not be an expense of the Securities Administrator, the Trustee or the Trust Fund, (ii) if the purchaser is an insurance company and the Certificate has been the subject of an ERISA-Qualifying Underwriting, a representation that the purchaser is an insurance company which is purchasing such Certificates except with funds contained in an “insurance company general account” (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in the case of any such Certificate presented for registration in the Class ___, Class ___, Class ___, Class ___name of a Plan or a person acting on behalf of any such Plan, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangementusing such Plan’s assets, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish satisfactory to the satisfaction Securities Administrator and the Trustee to the effect that the purchase or holding of the such Certificate Registrar that such transfer will not result in a violation of prohibited transactions under Section 406 of ERISA or and/or Section 4975 of the Code and will not subject the Depositor, the Seller, the Trustee, the Master Servicer, the Securities Administrator or cause the Servicer to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of such parties or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the CodeTrust Fund. In the absence event the representations referred to in the preceding sentence are not furnished, such representations shall be deemed to have been made to the Securities Administrator and the Trustee by the transferee’s acceptance of its having received an ERISA-Restricted Certificate, or by any beneficial owner who purchases an interest in such Certificate in book-entry form. In the certification event that a representation is violated, or any attempt to transfer an ERISA-Restricted Certificate to a Plan, or a person using a Plan’s assets is attempted without the delivery to the Trustee and the Securities Administrator of the opinion of counsel described above, the attempted transfer or acquisition of such Certificate shall be void and of no effect. Neither an Opinion of Counsel contemplated nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar shall require the prospective transferee of Depositor or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate Affiliate thereof shall be deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Securities Administrator and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Securities Administrator, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Certificate or any interest therein is acquired or held in violation of the provisions of Section this 5.02(c)(i), the next preceding permitted beneficial owner will be treated as the beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Servicer, the Seller, the Trustee, the Certificate Registrar, the Underwriter, the Master Servicer, the Securities Administrator and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by its those parties as a result of that acquisition or holding.
(ii) No transfer of an ERISA-Restricted Trust Certificate prior to the termination of the Swap Agreement shall be made unless the Securities Administrator and the Trustee shall have received a representation letter from the transferee of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as set forth in Exhibit F-1 heretoG, to the effect that, among other things, that either (Ai) such transferee is not neither a Disqualified Organization or an agent (including Plan nor a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection Person acting on behalf of any tax, and such Plan or using the assets of any such Plan to effect such transfer or (ii) a certificate from the transferor substantially in acquisition and holding of the form attached as Exhibit F-2 heretoERISA-Restricted Trust Certificate are eligible for exemptive relief under Prohibited Transaction Class Exemption (“PTCE”) 84-14, ▇▇▇▇ ▇▇-▇, ▇▇▇▇ ▇▇-▇▇, ▇▇▇▇ 95-60 or PTCE 96-23. Notwithstanding anything else to the effect thatcontrary herein, among other things, any purported transfer of an ERISA-Restricted Trust Certificate on behalf of a Plan without the delivery to the Securities Administrator and Trustee of a representation letter as described above shall be void and of no purpose of such proposed transfer, sale or other disposition of effect. If the Residual ERISA-Restricted Trust Certificate is or a Book-Entry Certificate, the transferee will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to have made a representation as provided in clause (i) or (ii) of this paragraph, as applicable. If any ERISA-Restricted Trust Certificate, or any interest therein, is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of no legal force that Certificate, retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or effect whatsoever holding of an ERISA-Restricted Trust Certificate, or interest therein, was effected in violation of the provisions of the preceding paragraph shall indemnify to the extent permitted by law and hold harmless the Trustee, the Securities Administrator, the Master Servicer, the Depositor, the Seller or the Servicer from and against any and all liabilities, claims, costs or expenses incurred by such Person shall not be deemed to be parties as a Certificateholder for any purpose hereunder, result of such acquisition or holding. To the extent permitted under applicable law (including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(dERISA), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee Securities Administrator shall be under no liability to any Person for any registration of transfer of a Residual any ERISA-Restricted Trust Certificate that is in fact not permitted by this Section 5.02(d5.02(b)(ii) or for making any payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from Agreement so long as the transfer was registered by the Securities Administrator in accordance with the foregoing requirements.
(i) Each Person who has or who acquires any purported Holder of Ownership Interest in a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, Interest shall be deemed for all purposes by the acceptance or acquisition of such Ownership Interest to have consented agreed to be bound by the following provisions and to have irrevocably authorized the Securities Administrator or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Interest are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Interest shall be a Permitted Transferee and shall promptly notify the Securities Administrator of any change or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer, other than the initial Transfer, of any Ownership Interest in a Residual Interest, the Securities Administrator shall require delivery to it and the Trustee and shall not register the Transfer of any Residual Interest until its receipt of an affidavit and agreement (a “Transfer Affidavit and Agreement”), in the form attached hereto as Exhibit F-2 from the proposed Transferee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Interest that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Interest, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02 5.02(d) and agrees to any amendment be bound by them.
(C) Notwithstanding the delivery of this a Transfer Affidavit and Agreement deemed necessary by counsel a proposed Transferee under clause (B) above, if a Responsible Officer of the Depositor Securities Administrator who is assigned to ensure this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Interest to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Interest shall agree (x) to require a Transfer Affidavit and Agreement in the form attached hereto as Exhibit F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Interest and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the Securities Administrator and the Trustee stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Residual Interest, by purchasing an Ownership Interest in such Certificate, agrees to give the Securities Administrator and the Trustee written notice that it is a “pass-through interest holder” within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Interest, if it is, or is holding an Ownership Interest in a Residual Interest on behalf of, a “pass-through interest holder.”
(ii) The Securities Administrator will register the Transfer of any Residual Interest only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Securities Administrator as a condition to such registration. In addition, no Transfer of a Residual Interest shall be made unless the Securities Administrator and the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust FundPermitted Transferee.
(eA) Subject If any purported Transferee shall become a Holder of a Residual Interest in violation of the provisions of this Section 5.02(d), then the last preceding Permitted Transferee shall be restored, to the preceding subsectionsextent permitted by law, upon surrender for to all rights as holder thereof retroactive to the date of registration of transfer such Transfer of such Residual Interest. The Securities Administrator shall be under no liability to any Certificate at the office Person for any registration of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class Transfer of a like aggregate Percentage InterestResidual Interest that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Certificate to the holder thereof or for taking any other action with respect to such holder under the provisions of this Agreement.
(fB) At the option If any purported Transferee shall become a holder of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations a Residual Interest in violation of the same Class restrictions in this Section 5.02(d) and to the extent that the retroactive restoration of a like aggregate Percentage the rights of the holder of such Residual Interest as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Securities Administrator shall have the right, without notice to the holder or any prior holder of such Residual Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled sell such Residual Interest to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required a purchaser selected by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in Securities Administrator on such terms as the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge Securities Administrator may choose. Such purported Transferee shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer promptly endorse and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates deliver each Residual Interest in accordance with the instructions of the Securities Administrator. Such purchaser may be the Securities Administrator itself or any Affiliate of the Securities Administrator. The proceeds of such sale, net of the commissions (which may include commissions payable to the Securities Administrator or its standard procedures.Affiliates), expenses and taxes due, if any, will be remitted by the Securities Administrator to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Securities Administrator, and the Securities Administrator
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.11 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Residual Certificate is to be made without registration or qualification qualification, the Trustee and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar Master Servicer in their respective capacities its capacity as such), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar Registrar, the Master Servicer and the Depositor Certificate Insurer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Residual Certificate or any interest therein shall be transferred made to (Ai) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns ▇▇ plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code (each, a "Plan") or (Bii) any Person who is directly or indirectly purchasing any such Class the Residual Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Trustee and the Certificate Registrar are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar each that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause any of the Servicer Trustee, the Certificate Registrar or the Trustee Master Servicer to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Trustee and the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Residual Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate, certify that it is neither (Ai) a Plan nor (Bii) a Person who is directly or indirectly purchasing any such Class Certificates the Residual Certificate on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126Plan (including any insurance company using funds in its general or separate accounts that may constitute "plan assets").
(di) No transfer of Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit and agreement (a "Transfer Affidavit and Agreement" attached hereto as Exhibit F-2) from the proposed transferee substantially Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement (in the form attached hereto as Exhibit F-1 hereto, F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder".
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate such provisions will not cause such Rating Agency to a Disqualified Organization downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or any other Person elimination of such provisions will not cause the Trust Fund to cease to qualify as a REMIC or and will not cause the imposition Trust Fund to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or (y) a Person other than the prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.11, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.11. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hg) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ih) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard customary procedures.
(i) The Trustee will cause the Certificate Registrar (unless the Trustee is acting as Certificate Registrar) to provide notice to the Trustee of each transfer of a Certificate and to provide the Trustee with an updated copy of the Certificate Register on the first Business Day in January and June of each year, commencing January 1997.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Inc Fl Rte Cert Se 1996-Lb1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this AgreementThe Certificate Registrar shall keep or cause to be kept, there shall be maintained at the office of the Certificate Registrar or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Owner Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (and hereby agrees to act) as Bankers Trust Company shall be the initial Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate RegisterRegistrar.
(b) The Certificate Registrar shall provide the Paying Agent with a list of the names and addresses of the Certificateholders on the Closing Date in the form in which such information is provided to the Certificate Registrar. Upon any transfers of Certificates, the Certificate Registrar shall promptly notify the Trustee of the name and address of the transferee in writing, by facsimile.
(c) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ a Certificate shall be made unless that (i) the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), and any applicable State securities laws are complied with, (ii) such transfer is exempt from the registration requirements under said Securities Act and laws or (iii) such transfer is made pursuant to an effective registration statement under a Person who the transferor reasonably believes is a "qualified institutional buyer" (as defined in Rule 144A of the Securities Act, and effective registration ) that is purchasing such Certificate for its own account or qualification under applicable state securities laws, or the account of a qualified institutional buyer to whom notice is given that the transfer is being made in a transaction which does not require such registration or qualification. If such reliance on said Rule 144A. In the event that a transfer is to be made without registration or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D hereto, and clause (ii) above, the Certificateholder desiring to effect such transfer and such Certificateholder's prospective transferee must each (x) certify in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory writing to the Certificate Registrar the facts surrounding such transfer and (y) provide the Certificate Registrar with a written opinion of counsel in form and substance satisfactory to the effect Depositor and the Certificate Registrar that such transfer may be made without such registration pursuant to an exemption from the Securities Act or qualification (laws, which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee Depositor or the Certificate Registrar Registrar. In the event that a transfer is to be made in their respective capacities as such)reliance upon clause (iii) above, (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee or the Certificate Registrar is obligated shall have furnished to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificates under the Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate Registrar and the Depositor against a Transferee Certificate, signed by such transferee, in the form of Exhibit C. Neither the Depositor nor the Certificate Registrar is under any liability that obligation to register the Certificates under said Securities Act or any other securities law. The Certificate Registrar may result if the request and shall receive in connection with any transfer is not so exempt or is not made signature guarantees satisfactory to it in accordance with such federal and state lawsits sole discretion.
(cd) None of the Certificates except for the Class ___, Class ___, Class ___, Class ___, or any interest therein In no event shall a Certificate be transferred to (A) any an employee benefit plan, trust annuity or account subject to ERISA or a plan described in Section 4975(e)(1) of the Code (any such plan, trust or other retirement arrangementaccount including any ▇▇▇▇▇ (HR-10) plans, including individual retirement accounts or annuities and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is other employee benefit plans subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code being referred to in this Section 6.3 as an "Employee Plan"), a trustee of any Employee Plan, or cause an entity, account or other pooled investment fund the Servicer underlying assets of which include or the Trustee are deemed to be deemed a fiduciary include Employee Plan assets by reason of such Plan or result an Employee Plan's investment in the imposition of entity, account or other pooled investment fund. The Seller, the Servicer, the Trustee, the Owner Trustee, the Note Insurer and the Standby Servicer shall not be responsible for confirming or otherwise investigating whether a proposed purchaser is an excise tax under employee benefit plan, trust or account subject to ERISA, or described in Section 4975 4975(e)(1) of the Code. In .
(e) Each Holder of a Certificate, by virtue of the absence of its having received the certification acquisition and Opinion of Counsel contemplated by the preceding sentenceholding thereof, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall will be deemed to have represented by its acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, and agreed as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126follows:
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially It is a qualified institutional buyer as defined in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization Rule 144A or an agent (including a broker, nominee institutional accredited investor as defined in Regulation D promulgated under the Securities Act and is acquiring the Certificates for its own institutional account or middleman) for the account of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge qualified institutional buyer or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and an institutional accredited investor.
(ii) It understands that the Certificates have been offered in a certificate from transaction not involving any public offering within the transferor substantially meaning of the Securities Act, and that, if in the form attached future it decides to resell, pledge or otherwise transfer any Certificates, such Certificates may be resold, pledged or transferred only (a) to a person whom the seller reasonably believes is a qualified institutional buyer (as Exhibit F-2 hereto, to defined in Rule 144A under the effect that, among other things, no purpose of such proposed transfer, sale Securities Act) that purchases for its own account or other disposition of for the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition account of a Residual Certificate qualified institutional buyer to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, whom notice is given that the resale, pledge or transfer of such Residual Certificate was not is being made in fact permitted by this Section 5.02(d)reliance on Rule 144A, be restored (b) pursuant to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any an effective registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder statement under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was Securities Act or (c) in fact not a permitted transferee reliance on another exemption under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust FundSecurities Act.
(eiii) Subject It understands that the Certificates will bear a legend substantially to the preceding subsectionsfollowing effect: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, upon AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES THAT THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND SUBJECT TO THE RECEIPT BY THE CERTIFICATE REGISTRAR AND THE DEPOSITOR OF A TRANSFEREE CERTIFICATE, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (3) IN RELIANCE ON ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUBJECT TO THE RECEIPT BY THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, OF A CERTIFICATION OF THE TRANSFEREE (SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR) AND AN OPINION OF COUNSEL (SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR) TO THE EFFECT THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND IN COMPLIANCE WITH THE TRANSFER REQUIREMENTS SET FORTH IN SECTION 3.4 OF THE TRUST AGREEMENT. IN NO EVENT SHALL THIS SECURITY BE TRANSFERRED TO AN EMPLOYEE BENEFIT PLAN, TRUST ANNUITY OR ACCOUNT SUBJECT TO ERISA OR A PLAN DESCRIBED IN SECTION 4975(E)(1) OF THE CODE, (ANY SUCH PLAN, TRUST OR ACCOUNT BEING REFERRED TO AS AN "EMPLOYEE PLAN"), A TRUSTEE OF ANY EMPLOYEE PLAN, OR AN ENTITY, ACCOUNT OR OTHER POOLED INVESTMENT FUND THE UNDERLYING ASSETS OF WHICH INCLUDE OR ARE DEEMED TO INCLUDE EMPLOYEE PLAN ASSETS BY REASON OF AN EMPLOYEE PLAN'S INVESTMENT IN THE ENTITY, ACCOUNT OR OTHER POOLED INVESTMENT FUND. INCLUDED WITHIN THE DEFINITION OF "EMPLOYEE PLANS" ARE, WITHOUT LIMITATION, ▇▇▇▇▇ (HR-10) PLANS, IRA's (INDIVIDUAL RETIREMENT ACCOUNTS OR ANNUITIES) AND OTHER EMPLOYEE BENEFIT PLANS, SUBJECT TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE.
(iv) It has not acquired the Certificates with the assets of an Employee Plan.
(f) Upon surrender for registration of transfer of any Certificate at the office of the Certificate Registraror agency maintained pursuant to Section 3.8, the Owner Trustee or the Authenticating Agent shall execute and execute, authenticate and the Certificate Registrar deliver (or shall cause as its authenticating agent to authenticate and deliver), in the name of the designated transferee or transferees, one or more new Certificates of the same Class in authorized denominations of a like class and aggregate Percentage Interest.
(f) Certificate Balance dated the date of authentication by the Owner Trustee or any authenticating agent. At the option of any a Holder, its Certificates may be exchanged for other Certificates of the same class in authorized denominations of the same Class of a like aggregate Percentage Interest, Certificate Balance upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled agency maintained pursuant to receiveSection 3.8.
(g) Every Certificate presented or surrendered for registration of transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by, by the Holder thereof Certificateholder or his attorney duly authorized in writing, with such signature guaranteed by an "eligible guarantor institution" meeting the requirements of the Certificate Registrar, which requirements include membership or participation in the Securities Transfer Agent's Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Certificate Registrar in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act. Each Certificate surrendered for registration of transfer or exchange shall be canceled and subsequently disposed of by the Owner Trustee in accordance with its customary practice.
(h) No service charge shall be imposed made for any registration of transfer or exchange of Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications 110 from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, which establishes to the satisfaction of the Certificate Registrar Trustee that the purchase and holding of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P o▇ (▇▇▇) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice that it is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)
(A) such transferee immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or is not holding an Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset Back Pas THR Certs Ser 2003 5)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act. 148
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemptions, and that it understands that there are certain conditions to the availability of the Underwriters' Exemptions, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P o▇ (▇▇▇) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall 150 have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following: 151
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.su
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc Series 2003-6)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeServicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___▇-▇, ▇▇▇▇▇ ▇-▇, Class ___M-8, Class ___M-9, Class ___M-10 and the Class M-11, Class ___ and CE, Class ___ P or Residual Certificate (the "Private Certificates") shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Private Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Class CE, then Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorTrustee, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Private Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in the Class ___M-6, Class ___M-7, 121 Class M-8, Class ___M-9, Class ___M-10 and the Class M-11 Certificates is to be made without registration under the 1933 Act (other than in connection with the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, Class ___ or Class ___ then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder's prospective transferee (which in the case of the Book-Entry Certificates, the Certificateholder and the Certificateholder's prospective transferee shall be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Private Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Residual Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee and the Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with (i) the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any such Class CE, Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that it is not purchasing with Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Certificate Registrar or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner shall require be treated as the prospective transferee beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any Class ___such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, Class ___the Servicer, Class ___the Trustee, Class ___the NIMS Insurer and the Trust Fund from and against any and all liabilities, Class ___ claims, costs or Class ___ Certificate to certify, and each prospective transferee expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who has or who acquires any Class ___, Class ___, Class ___, Class ___ or Class ___ Ownership Interest in a Residual Certificate shall be deemed to have represented by its the acceptance or acquisition of such Certificate, that it is neither Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to Permitted Transferee and shall promptly notify the contrary contained herein, prior to registration Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust FundPermitted Transferee.
(eE) Subject Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and give the Certificate Registrar shall deliver, in written notice that it is a "pass-through interest holder" within the name meaning of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.temporary Treasury regulation Section 1.67-3T(a)(2)(i)
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-9 Certificate, Class ___M-10 Certificate, Class ___CE Certificate, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class M-9 Certificate, Class M-10 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, (ii) the transfer of any such Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___M-9 Certificates, Class ___M-10 Certificates, the Class ___CE Certificates, the Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in the Class ___M-9 Certificates or the Class M-10 Certificates is to be made without registration under the 1933 Act (other than in connection with the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor), Class ___then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder's prospective transferee (which in the case of the Book-Entry Certificates, the Certificateholder and the Certificateholder's prospective transferee shall be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Class M-9 Certificate, Class M-10 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee, the NIMS Insurer and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with (i) the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor, (ii) the Certificate Registrar shall require the prospective transferee transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ such Certificate to certify, and each prospective transferee the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any Class ___, Class ___, Class ___, Class ___ such Certificate from the issuer under the Indenture or Class ___ Certificate the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case such transferee shall be deemed to have represented by its acquisition of such Certificate, that it is neither not purchasing with Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (Awhich, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of the Mezzanine Certificates or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or 127 interest therein, that either (i) it is not a Plan nor or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (Bii) for Mezzanine Certificates other than the Class M-9 Certificates and the Class M-10 Certificates it has acquired and is holding such Mezzanine Certificates (other than the Class M-9 Certificates and the Class M-10 Certificates) in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Certificates (other than the Class M-9 Certificates and the Class M-10 Certificates) must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by ▇▇▇▇▇'▇, Fitch or S&P or (iii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer, and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and 128 that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a sell such Residual Certificate to a Disqualified Organization purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any other Person will not cause Affiliate of the Trust Fund to cease to qualify as a REMIC or cause Certificate Registrar. The proceeds of such sale, net of the imposition of a tax upon the Trust Fund.
commissions (e) Subject which may include commissions payable to the preceding subsectionsCertificate Registrar or its Affiliates), upon surrender for registration of transfer expenses and taxes due, if any, shall be remitted by the Certificate Registrar to such purported Transferee. The terms and conditions of any Certificate at sale under this clause (iii)(B) shall be determined in the office sole discretion of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, not be liable to any Person having an Ownership Interest in the name a Residual Certificate as a result of the designated transferee or transferees, one or more new Certificates its exercise of the same Class of a like aggregate Percentage Interestsuch discretion.
(fiv) At The Trustee shall make available to the option Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any Holderregulated investment company, its Certificates may be exchanged for other Certificates of authorized denominations real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the same Class of Code that holds an Ownership Interest in a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged Residual Certificate having as among its record Holders at the office of the Certificate Registrarany time any Person which is a Disqualified Organization. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Reasonable compensati
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc. Series 2005-R1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Securities Administrator shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Securities Administrator in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Securities Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby Securities Administrator will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, the Seller, the Servicer, the Securities Administrator and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Securities Administrator shall at any time not be the Certificate Registrar, the Securities Administrator shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Non-Offered Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a Definitive Certificatetrust, then the depositor of which is an affiliate of the Seller), the Trustee, the Securities Administrator and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: either (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, and F-1 or (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorSeller, the Trustee, the Servicer, the Trustee Certificate Registrar, the Securities Administrator or the Certificate Registrar in their respective capacities as suchTrust Fund), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee Seller, the Certificate Registrar, the Securities Administrator or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Private Certificate shall, and does hereby agree to, indemnify the Trustee, the Seller, the Depositor, the Certificate Registrar Registrar, the Securities Administrator and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(ci) None No transfer of an ERISA-Restricted Certificate shall be made unless the Securities Administrator shall have received in the form attached hereto as Exhibit F-2 or Exhibit G, as applicable, either (i) a certification letter from the transferee of such Certificate, acceptable to and in form and substance satisfactory to the Securities Administrator and the Trustee, to the effect that such transferee is not a Plan or a person using the assets of any such Plan, which representation letter shall not be an expense of the Securities Administrator, the Trustee or the Trust Fund, (ii) if the purchaser is an insurance company and the Certificate has been the subject of an ERISA-Qualifying Underwriting, a representation that the purchaser is an insurance company which is purchasing such Certificates except with funds contained in an “insurance company general account” (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in the case of any such Certificate presented for registration in the Class ___, Class ___, Class ___, Class ___name of a Plan or a person acting on behalf of any such Plan, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangementusing such Plan’s assets, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish satisfactory to the satisfaction Securities Administrator and the Trustee to the effect that the purchase or holding of the such Certificate Registrar that such transfer will not result in a violation of prohibited transactions under Section 406 of ERISA or and/or Section 4975 of the Code and will not subject the Depositor, the Seller, the Trustee, the Securities Administrator or cause the Servicer to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of such parties or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the CodeTrust Fund. In the absence event the representations referred to in the preceding sentence are not furnished, such representations shall be deemed to have been made to the Securities Administrator by the transferee’s acceptance of its having received an ERISA-Restricted Certificate, or by any beneficial owner who purchases an interest in such Certificate in book-entry form. In the certification event that a representation is violated, or any attempt to transfer an ERISA-Restricted Certificate to a Plan, or a person using a Plan’s assets is attempted without the delivery to the Trustee and the Securities Administrator of the opinion of counsel described above, the attempted transfer or acquisition of such Certificate shall be void and of no effect. Neither an Opinion of Counsel contemplated nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar shall require the prospective transferee of Depositor or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate Affiliate thereof shall be deemed to have represented by its acquisition that such affiliate is not a Plan or a Person investing Plan Assets) and the Securities Administrator and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Securities Administrator, shall be a written representation) from the Depositor of the status of such Certificatetransferee as an affiliate of the Depositor.
(ii) [Reserved]
(iii) If any Certificate or any interest therein is acquired or held in violation of the provisions of Section 5.02(c)(i), the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Servicer, the Seller, the Trustee, the Certificate Registrar, the Underwriters, the Securities Administrator and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Securities Administrator or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Securities Administrator of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Securities Administrator shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a “Transfer Affidavit and Agreement”), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Securities Administrator who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement in the form attached hereto as Exhibit F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the effect Securities Administrator and the Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Securities Administrator written notice that it will become insolvent is a “pass-through interest holder” within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a “pass-through interest holder.”
(ii) The Securities Administrator will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Securities Administrator as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Securities Administrator and the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Securities Administrator shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Securities Administrator shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Securities Administrator on such terms as the Securities Administrator may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Securities Administrator. Such purchaser may be the Securities Administrator itself or any Affiliate of the Securities Administrator. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Securities Administrator or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Securities Administrator to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Securities Administrator, and the Securities Administrator shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Securities Administrator shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Such information shall be provided by the Securities Administrator upon receipt of written request and reasonable compensation.
(v) The provisions of this Section 5.02 5.02(d) set forth prior to this subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Securities Administrator and to any amendment of this Agreement deemed necessary by counsel the Certificate Registrar at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Securities Administrator and the Certificate Registrar, to the effect that such modification of, addition to or elimination of such provisions will not cause any REMIC created hereunder to cease to qualify as a REMIC and will not cause any REMIC created hereunder, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarSecurities Administrator maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent Securities Administrator shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Interes
Appears in 1 contract
Sources: Pooling and Servicing Agreement (J.P. Morgan Mortgage Acquisition Corp. 2005-Fld1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ B Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class B Certificate is to be made without registration or qualification qualification, the Trustee and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar Master Servicer in their respective capacities its capacity as such), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ B Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class B Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar Registrar, the Master Servicer and the Depositor Certificate Insurer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the a Class ___, Class ___, Class ___, Class ___, B or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with "plan assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss.2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Depositor, the Trustee, the Master Servicer and the Certificate Registrar Insurer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Depositor, the Trustee, the Master Servicer and the Certificate Registrar Insurer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the Trustee, the Trust Fund or the Trustee Certificate Insurer to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the Trustee, the Trust Fund or the Certificate Insurer. In lieu of such Opinion of Counsel, a Plan, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with Plan Assets of a Plan may provide a certification in the form of Exhibit G to this Agreement, which the Trustee may rely upon without further inquiry or investigation. Neither an Opinion of Counsel nor a certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be have deemed to have represented by its acquisition that such affiliate is not a Plan or a Person investing Plan Assets of any Plan) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, transferee as named fiduciary of, as trustee of, or with assets an affiliate of a Plan. - 119 - 126the Depositor.
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially Each Person who has or who acquires any Ownership Interest in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of deemed by the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer acceptance or acquisition of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes Ownership Interest to have consented agreed to be bound by the following provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option terms of any Holder, its Certificates may be exchanged for mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed things necessary in connection with any transfer or exchange such sale. The rights of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the each Person acquiring any Ownership Interest in a Residual Certificate Registrar and a certificate of such cancellation shall be delivered are expressly subject to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.following provisions:
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Bros Mort Sec Vii Inc Asset Bk Fl Rte Ce Se 1996 Lb3)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this AgreementThe Certificate Registrar shall keep or cause to be kept, there shall be maintained at the office of the Certificate Registrar or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Owner Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (and hereby agrees to act) as Bankers Trust Company shall be the initial Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate RegisterRegistrar.
(b) The Certificate Registrar shall provide the Paying Agent with a list of the names and addresses of the Certificateholders on the Closing Date in the form in which such information is provided to the Certificate Registrar. Upon any transfers of Certificates, the Certificate Registrar shall promptly notify the Paying Agent (if other than the Certificate Registrar) of the name and address of the transferee in writing, by facsimile.
(c) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ a Certificate shall be made unless that (i) the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), and any applicable State securities laws are complied with, (ii) such transfer is exempt from the registration requirements under said Securities Act and laws or (iii) such transfer is made pursuant to an effective registration statement under a Person who the transferor reasonably believes is a "qualified institutional buyer" (as defined in Rule 144A of the Securities Act, and effective registration ) that is purchasing such Certificate for its own account or qualification under applicable state securities laws, or the account of a qualified institutional buyer to whom notice is given that the transfer is being made in a transaction which does not require such registration or qualification. If such reliance on said Rule 144A. In the event that a transfer is to be made without registration or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D hereto, and clause (ii) above, the Certificateholder desiring to effect such transfer and such Certificateholder's prospective transferee must each (x) certify in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory writing to the Certificate Registrar the facts surrounding such transfer and (y) provide the Certificate Registrar with a written opinion of counsel in form and substance satisfactory to the effect Depositor and the Certificate Registrar that such transfer may be made without such registration pursuant to an exemption from the Securities Act or qualification (laws, which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee Depositor or the Certificate Registrar Registrar. In the event that a transfer is to be made in their respective capacities as such)reliance upon clause (iii) above, (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee or the Certificate Registrar is obligated shall have furnished to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificates under the Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate Registrar and the Depositor against a Transferee Certificate, signed by such transferee, in the form of Exhibit C. Neither the Depositor nor the Certificate Registrar is under any liability that obligation to register the Certificates under said Securities Act or any other securities law. The Certificate Registrar may result if the request and shall receive in connection with any transfer is not so exempt or is not made signature guarantees satisfactory to it in accordance with such federal and state lawsits sole discretion.
(cd) None of the Certificates except for the Class ___, Class ___, Class ___, Class ___, or any interest therein In no event shall a Certificate be transferred to (A) any an employee benefit plan, trust annuity or account subject to ERISA or a plan described in Section 4975(e)(1) of the Code (any such plan, trust or other retirement arrangementaccount including any Keogh (HR-10) plans, including individual retirement accounts and annuities, Keogor annuities an▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is er employee benefit plans subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code being referred to in this Section 6.3 as an "Employee Plan"), a trustee of any Employee Plan, or cause an entity, account or other pooled investment fund the Servicer underlying assets of which include or the Trustee are deemed to be deemed a fiduciary include Employee Plan assets by reason of such Plan or result an Employee Plan's investment in the imposition of entity, account or other pooled investment fund. The Seller, the Servicer, the Trustee, the Owner Trustee, the Insurer and the Standby Servicer shall not be responsible for confirming or otherwise investigating whether a proposed purchaser is an excise tax under employee benefit plan, trust or account subject to ERISA, or described in Section 4975 4975(e)(1) of the Code. In .
(e) Each Holder of a Certificate, by virtue of the absence of its having received the certification acquisition and Opinion of Counsel contemplated by the preceding sentenceholding thereof, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall will be deemed to have represented by its acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, and agreed as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126follows:
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially It is a qualified institutional buyer as defined in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization Rule 144A or an agent (including a broker, nominee institutional accredited investor as defined in Regulation D promulgated under the Securities Act and is acquiring the Certificates for its own institutional account or middleman) for the account of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge qualified institutional buyer or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and an institutional accredited investor.
(ii) It understands that the Certificates have been offered in a certificate from transaction not involving any public offering within the transferor substantially meaning of the Securities Act, and that, if in the form attached future it decides to resell, pledge or otherwise transfer any Certificates, such Certificates may be resold, pledged or transferred only (a) to a person whom the seller reasonably believes is a qualified institutional buyer (as Exhibit F-2 hereto, to defined in Rule 144A under the effect that, among other things, no purpose of such proposed transfer, sale Securities Act) that purchases for its own account or other disposition of for the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition account of a Residual Certificate qualified institutional buyer to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, whom notice is given that the resale, pledge or transfer of such Residual Certificate was not is being made in fact permitted by this Section 5.02(d)reliance on Rule 144A, be restored (b) pursuant to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any an effective registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder statement under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was Securities Act or (c) in fact not a permitted transferee reliance on another exemption under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust FundSecurities Act.
(eiii) Subject It understands that the Certificates will bear a legend substantially to the preceding subsectionsfollowing effect: THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, upon AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES THAT THIS SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON WHOM THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, AND SUBJECT TO THE RECEIPT BY THE CERTIFICATE REGISTRAR AND THE DEPOSITOR OF A TRANSFEREE CERTIFICATE, (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR (3) IN RELIANCE ON ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUBJECT TO THE RECEIPT BY THE CERTIFICATE REGISTRAR AND THE DEPOSITOR, OF A CERTIFICATION OF THE TRANSFEREE (SATISFACTORY TO THE CERTIFICATE REGISTRAR AND THE DEPOSITOR) AND AN OPINION OF COUNSEL (SATISFACTORY TO THE CERTIFICATE REGISTRAR A▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇) ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ IS IN COMPLIANCE WITH THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND IN COMPLIANCE WITH THE TRANSFER REQUIREMENTS SET FORTH IN SECTION 3.4 OF THE TRUST AGREEMENT. IN NO EVENT SHALL THIS SECURITY BE TRANSFERRED TO AN EMPLOYEE BENEFIT PLAN, TRUST ANNUITY OR ACCOUNT SUBJECT TO ERISA OR A PLAN DESCRIBED IN SECTION 4975(E)(1) OF THE CODE, (ANY SUCH PLAN, TRUST OR ACCOUNT BEING REFERRED TO AS AN "EMPLOYEE PLAN"), A TRUSTEE OF ANY EMPLOYEE PLAN, OR AN ENTITY, ACCOUNT OR OTHER POOLED INVESTMENT FUND THE UNDERLYING ASSETS OF WHICH INCLUDE OR ARE DEEMED TO INCLUDE EMPLOYEE PLAN ASSETS BY REASON OF AN EMPLOYEE PLAN'S INVESTMENT IN THE ENTITY, ACCOUNT OR OTHER POOLED INVESTMENT FUND. INCLUDED WITHIN THE DEFINITION OF "EMPLOYEE PLANS" ARE, WITHOUT LIMITATION, KEOGH (HR-10) PLANS, IRA's (INDIVIDUAL RETIREMENT ACCOUNTS ▇▇ ▇NNUITIES) AND OTHER EMPLOYEE BENEFIT PLANS, SUBJECT TO SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE.
(iv) It has not acquired the Certificates with the assets of an Employee Plan.
(f) Upon surrender for registration of transfer of any Certificate at the office of the Certificate Registraror agency maintained pursuant to Section 3.8, the Owner Trustee or the Authenticating Agent shall execute and execute, authenticate and the Certificate Registrar 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 the same Class in authorized denominations of a like class and aggregate Percentage Interest.
(f) Certificate Balance dated the date of authentication by the Owner Trustee or any authenticating agent. At the option of any a Holder, its Certificates may be exchanged for other Certificates of the same class in authorized denominations of the same Class of a like aggregate Percentage Interest, Certificate Balance upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled agency maintained pursuant to receiveSection 3.8.
(g) Every Certificate presented or surrendered for registration of transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Owner Trustee and the Certificate Registrar duly executed by, by the Holder thereof Certificateholder or his attorney duly authorized in writing, with such signature guaranteed by an "eligible guarantor institution" meeting the requirements of the Certificate Registrar, which requirements include membership or participation in the Securities Transfer Agent's Medallion Program ("STAMP") or such other "signature guarantee program" as may be determined by the Certificate Registrar in addition to, or in substitution for, STAMP, all in accordance with the Exchange Act. Each Certificate surrendered for registration of transfer or exchange shall be canceled and subsequently disposed of by the Owner Trustee in accordance with its customary practice.
(h) No service charge shall be imposed made for any registration of transfer or exchange of Certificates, but the Owner Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trust Administrator shall cause to be maintained kept at the office or agency appointed by the Trust Administrator in accordance with the provisions of the Certificate Registrar Section 8.12 hereof a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trust Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Depositor, each Certificateholder, the Trustee is hereby initially appointed (and hereby agrees to act) as the Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer Insurer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar Trust Administrator as to the information set forth in the Certificate Register. The Trust Administrator shall furnish or cause to be furnished to the Depositor, the Trustee and the Certificate Insurer and to any Certificateholder a listing of the names and addresses of the Certificateholders on reasonable request.
(b) (i) The Class P Certificates and the Class R Certificates have not been registered or qualified under the 1933 Act or any state securities laws or "blue sky" laws. No transfer transfer, sale, pledge or other disposition of any Class ___, P Certificate or Class ___, Class ___, Class ___, Class ___ and Class ___ R Certificate shall be made unless that transfer such disposition is made pursuant to an effective registration statement under the Act, 1933 Act and effective registration or qualification under applicable state securities laws or "blue sky" laws, or is made in a transaction which does not require such registration or qualification. If such In the event that a transfer is to be made without registration or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under an exemption from the 1933 Act, a certificate from the Trust Administrator shall not register such transfer unless:
(A) each Class P Certificateholder or Class R Certificateholder desiring to effect such disposition and such Certificateholder's prospective transferee certifies to the Trust Administrator in writing the facts surrounding such disposition, which certification shall be substantially in the form attached as of Exhibit D J hereto, and ; or
(iiB) in all other cases, (A) except where the Depositor Class P Certificateholder or an Affiliate thereof is Class R Certificateholder desiring to effect such disposition delivers to the transferor or transferee, Trustee an Opinion of Counsel satisfactory to the Certificate Registrar to the effect Trust Administrator that such transfer may be made without such registration or qualification (pursuant to an exemption from the 1933 Act, which Opinion of Counsel shall not be an expense of the Trust Fund or Trustee. None of the Seller, the Depositor, the Servicer, the Trustee Trust Administrator or the Certificate Registrar in their respective capacities as such), (B) a certificate from Trustee is obligated under this Agreement to register the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee Class P Certificates or the Certificate Registrar is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ R Certificates under the 1933 Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, P Certificates or Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate R Certificates without such registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ P Certificateholder or Class ___ R Certificateholder desiring to effect such a transfer shall, and does hereby agree to, promptly indemnify and reimburse the Trustee, the Certificate Registrar Seller, the Depositor, the Trust Administrator and the Depositor against Servicer for costs and expenses incurred in connection with any liability that may result results if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(ci) None Notwithstanding anything to the contrary herein, the Trust Administrator shall not register the acquisition or transfer of any Class P or Class R Certificate unless it shall have received (a) a representation, in form substantially identical to the Certificates except for one set forth in Exhibit J-1 hereto, to the Class ___, Class ___, Class ___, Class ___, effect that the acquiror or any interest therein shall be transferred to (A) any transferee of such Certificate is not an employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is arrangement subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee a plan subject to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee or a Person acting on behalf of any Class ___, Class ___, Class ___, Class ___, Class ___ such plan or Class ___ Certificate to certify, and each prospective transferee arrangement or using the assets of any such plan or arrangement to effect such acquisition or transfer or (b) if the acquiror is an insurance company, a representation that the acquiror is an insurance company that is purchasing such Certificate with funds contained in an "insurance company general account" (as such term is defined in Section V(e) of Prohibited Transaction Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate Exemption 95-60 ("PTCE 95-60")) and that the acquisition and holding of such Certificates are covered under PTCE 95-60. The representations described above shall be deemed to have represented been made to the Trust Administrator by its acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly the acquirer's or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets transferee's acceptance of a PlanClass R Certificate. - 119 - 126In the event that such representation is violated, such attempted transfer or acquisition shall be void and of no effect.
(dc) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, except for the transfer on the Closing Date of the Class R Certificates to the Seller, prior to registration of any transfer, sale or other disposition of a Residual Class R Certificate, the Certificate Registrar proposed transferee shall have received provide to the Servicer, the Seller, the Class R Certificateholders, the Trust Administrator and the Trustee: (i) an affidavit from the proposed transferee substantially in the form attached as of Exhibit F-1 hereto, L hereto to the effect that, among other things, (A) that such transferee is not a Disqualified Organization or a non-U.S. Person or an agent (including a broker, nominee or middleman) of a non-U.S. Person or a Disqualified Organization; and (ii) a certificate which acknowledges that (A) each Class R Certificate has been designated as a residual interest in the Master and Subsidiary REMICs, (B) the transferee will include in its income the entire net income of the related REMIC and that such transferee is income may be an "excess inclusion", as defined in the Code, that, with certain exceptions, cannot a Non- U.S. Personbe offset by other losses or benefits from any tax exemption, (C) such the transferee has no present knowledge or expectation that it will become insolvent or subject expects to a bankruptcy proceeding for so long as have the Residual Certificate remains outstandingfinancial means to satisfy all of its tax obligations including those relating to holding Class R Certificates, and (D) no purpose of such proposed transfer, sale or other disposition the acquisition of the Residual a Class R Certificate is to avoid or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Class R Certificate to a Disqualified Organization or a non-U.S. Person or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Nonnon-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Class R Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d5.02(c), then the prior Holder of the Residual Class R Certificate purportedly transferred shall, upon discovery, discovery that the transfer of such Residual the Class R Certificate was not in fact permitted by this Section 5.02(d5.02(c), be restored to all rights as Holder thereof retroactive to the date of the purported transfertransfer of the Class R Certificate. The Trustee Trust Administrator, the Trustee, the Depositor (except in its capacity as transferor of such Certificate), the Seller and the Servicer shall be under have no liability to any Person for any registration of or transfer of a Residual Class R Certificate that is not permitted by this Section 5.02(d5.02(c) or for making payments due on such Residual Class R Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this AgreementAgreement if the Trust Administrator, the Trustee, the Seller and the Servicer have received the affidavit and certificate referenced above. The prior Holder shall be entitled to recover from any purported Holder of a Residual Class R Certificate that was in fact not a permitted transferee under this Section 5.02(d5.02(c) at the time it became a Holder Holder, all payments made on the Class R Certificate to such Residual Certificatepurported Holder. The Holder of Residual Certificatesa Class R Certificate, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 5.02(c) and to any amendment of this Agreement deemed necessary by counsel of to the Depositor Seller to ensure that the transfer of a Residual Class R Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund related REMIC to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fundsuch REMIC.
(ed) Subject to the preceding subsectionsparagraphs, upon surrender for registration of transfer of any Certificate (duly endorsed, or accompanied by an executed assignment, as specified in the Certificate) at any agency or office appointed by the office Trust Administrator for such purpose pursuant to Section 8.12 hereof, the Trustee, or the Trust Administrator on behalf of the Certificate RegistrarTrustee, shall execute and the Trustee or the Authenticating Agent Trust Administrator shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(fe) At the option of any Holderthe Certificateholders, its Certificates each Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at any office or agency appointed by the office of the Certificate RegistrarTrust Administrator for such purpose pursuant to Section 8.12 hereof. Whenever any Certificates are so surrendered for exchange the Trustee, or the Trust Administrator on behalf of the Trustee, shall execute and the Trustee or the Authenticating Agent Trust Administrator shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrust Administrator) be duly endorsed by, or be accompanied by an assignment in the form attached to the Certificate or by a written instrument of transfer in the a form reasonably satisfactory to the Certificate Registrar Trust Administrator duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hf) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar Trust Administrator may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ig) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates Trust Administrator in accordance with its standard customary procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Financial Asset Securities Corp)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee, in accordance with the provisions of Section 8.12, a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-10 Certificate, Class ___M-11 Certificate, Class ___CE Certificate, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class M-10 Certificate, Class M-11 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___M-10 Certificates, the Class ___M-11 Certificates, the Class ___CE Certificates, the Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in the Class ___M-10 Certificates or the Class M-11 Certificates is to be made without registration under the 1933 Act (other than in connection with the initial issuance thereof or a transfer thereof by the Depositor or one of its Affiliates), Class ___then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a transfer shall, and does hereby agree to, indemnify certificate from such Certificateholder's prospective transferee (which in the Trusteecase of the Book-Entry Certificates, the Certificate Registrar Certificateholder and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None of the Certificates except for the Class ___, Class ___, Class ___, Class ___, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the Certificateholder's prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as Exhibit F-1 heretocertification), to the effect that, among other things, (A) such transferee is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored is being made to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.a
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-10 Certificate, Class ___M-11 Certificate, Class ___CE Certificate, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class M-10 Certificate, Class M-11 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___M-10 Certificates, Class ___M-11 Certificates, the Class ___CE Certificates, the Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate Registrar and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None of the Certificates except for the Class ___, Class ___, Class ___, Class ___, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.or
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates Series 2005-R2)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee, in accordance with the provisions of Section 8.12, a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.. 124
(b) No transfer of any Class ___M-11 Certificate, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class M-11 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___M-11 Certificates, the Class ___CE Certificates, the Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in the Class ___M-11 Certificates is to be made without registration under the 1933 Act (other than in connection with the initial issuance thereof or a transfer thereof by the Depositor or one of its Affiliates), Class ___then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder's prospective transferee (which in the case of the Book-Entry Certificates, the Certificateholder and the Certificateholder's prospective transferee will be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Class M-11 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___P Certificate, Residual Certificate or Class ___, Class ___, M-11 Certificate or any interest therein in any such Certificates shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless either (i) the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee, the NIMS Insurer, the Trust Fund and the 125 Master Servicer and on which establish they may rely, to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund or (ii) solely in the case of the Class M-11 Certificates, the Trustee receives a certificate from the transferee in the form of Exhibit G that the Class M-11 Certificates have been offered in an underwriting or placement within the meaning of Prohibited Transaction Exemption 2002-41, as amended. Neither an Opinion of Counsel nor any certification shall be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Once a certification is given under subsection (ii) above, no subsequent transferee shall be required to provide such a certification on transfer of a Class M-11 Certificate. Each beneficial owner of a Mezzanine Certificate Registrar shall require the prospective transferee of (other than a Class M-11 Certificate) or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificate (other than a Class M-11 Certificate) in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates (other than the Class M-11 Certificates) must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P or (iii) (▇) ▇t is an insurance company, (2) the source of funds used to acquire or hold the Certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. Each beneficial owner of a Class M-11 Certificate or any interest therein which occurs on or following the time a certification has been made under subsection (c)(ii) above shall be deemed to have represented, by virtue of its acquisition or holding of the Certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets or (ii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding two paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding two paragraphs shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against 126 any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the effect Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a sell such Residual Certificate to a Disqualified Organization purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any other Person will not cause Affiliate of the Trust Fund to cease to qualify as a REMIC or cause Certificate Registrar. The proceeds of such sale, net of the imposition of a tax upon the Trust Fund.
commissions (e) Subject which may include commissions payable to the preceding subsectionsCertificate Registrar or its Affiliates), upon surrender for registration of transfer expenses and taxes due, if any, shall be remitted by the Certificate Registrar to such purported Transferee. The terms and conditions of any Certificate at sale under this clause (iii)(B) shall be determined in the office sole discretion of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, not be liable to any Person having an Ownership Interest in the name a Residual Certificate as a result of the designated transferee or transferees, one or more new Certificates its exercise of the same Class of a like aggregate Percentage Interestsuch discretion.
(fiv) At The Trustee shall make available to the option of Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any Holder, its Certificates may be exchanged for other Certificates of authorized denominations tax imposed (A) as a result of the same Class Transfer of an Ownership Interest in a like aggregate Percentage InterestResidual Certificate to any Person who is a Disqualified Organization, upon surrender of including the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 information described in Treasury regulations sections 1.860D-1(b)(5) and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g1.860E-2(a)(5) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory with respect to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures."
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Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the 115 Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-5 Certificate, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class M-5 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___M-5 Certificates, the Class ___CE Certificates, the Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class M-5 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee, the NIMS Insurer, the Certificate Insurer and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Certificate Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any 116 obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated by shall not be an expense of the preceding sentenceDepositor, the Master Servicer, the NIMS Insurer, the Certificate Registrar shall require Insurer, the prospective transferee Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of the Mezzanine Certificates (other than Class ___, Class ___, Class ___, Class ___, Class ___ M-5 Certificates) or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates (other than Class M-5 Certificates) in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Certificates (other than the Class M-5 Certificates) must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P o▇ (▇▇▇) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. Each beneficial owner of a Class M-5 Certificate or any interest therein, shall be deemed to have represented, by virtue of its acquisition or holding of the Certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets or (ii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer, the Certificate Insurer, and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The 117 rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee. 118
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and 119
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC or and will not cause any Trust REMIC, as the imposition of a case may be, to be subject to an entity-level tax upon caused by the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer Transfer of any Residual Certificate at the office of the Certificate Registrar, the Trustee to a Person that is not a Permitted Transferee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of (y) a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for Person other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.t
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trust Administrator shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trust Administrator in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trust Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby Trust Administrator will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trust Administrator shall at any time not be the Certificate Registrar, the Trust Administrator shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trust Administrator and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Trust Administrator, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Certificate Registrar, the Trustee or the Certificate Registrar Trust Administrator is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE 118 Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Trust Administrator, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with "Plan Assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Depositor, the Certificate Registrar Trustee, the Trust Administrator and the Master Servicer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee, the Trust Administrator and the Master Servicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the Trustee, the Trust Administrator or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the Trustee, the Trust Administrator or the Trust Fund. Unless such Opinion of Counsel is provided, any prospective Transferee of such Certificates must provide a certification in the form of Exhibit G to this Agreement (or other form acceptable to the Depositor, the Trustee, the Trust Administrator and the Master Servicer), which the Trust Administrator may rely upon without further inquiry or investigation. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trust Administrator shall be entitled to conclusively rely upon a representation (which, upon the request of the Trust Administrator, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan investor, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's or S&P or (iii) (▇) ▇▇ is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate or Residual Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the 119 Master Servicer, the Trustee, the Trust Administrator, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the 120 meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trust Administrator shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its 121 record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trust Administrator.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trust Administrator at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Administrator, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trust Administrator shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrust Administrator maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent Trust Administrator shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.th
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Ass Bk Pas THR Certs Ser 2002 2)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, each Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___X Certificate, Class ___B-IO Certificates, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class X Certificate, Class B-IO Certificates, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a Definitive Certificatetrust, then the depositor of which is an affiliate of the Seller), the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: either (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, and F-1 or (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, any Servicer, the Trustee Certificate Registrar or the Certificate Registrar in their respective capacities as suchTrust Fund), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___X Certificates, Class ___B-IO Certificates, the Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws 104 or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class X Certificate, a Class B-IO Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor each Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None (i) No transfer of the Certificates except for the a Class ___X Certificate, a Class B-IO Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to any Plan, any Person acting, directly or indirectly, on behalf of any such Plan or any Person (Aother than in connection with the initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a trust, the depositor of which is an affiliate of the Seller) any employee benefit acquiring such Certificates with "plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, determined under other applicable law unless the prospective transferee provides Depositor, the Certificate Registrar Trustee and each Servicer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee and the Servicers that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, any Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, any Servicer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar shall require the prospective transferee of Depositor or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate affiliate thereof shall be deemed to have represented by its acquisition of that such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee affiliate is not a Disqualified Organization Plan or an agent (including a broker, nominee or middlemanPerson investing Plan Assets) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as and the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder conclusively rely upon a representation (which, upon the request of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereofTrustee, shall be deemed for all purposes to have consented to a written representation) from the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel Depositor of the Depositor to ensure that the transfer status of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify such transferee as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office an affiliate of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage InterestDepositor.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset Backed Securities Corp)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. 111 Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate or Class R-X Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Trustee that the purchase and holding of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, any other servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated by the preceding sentence, the shall not be an expense of such persons and upon which such persons may rely. Any purchaser of a Class A Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ a Mezzanine Certificate shall be deemed to have represented by its acquisition made such certification unless it delivers such Opinion of such Certificate, that it is neither (A) a Plan Counsel. Neither an Opinion of Counsel nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or certification will be required in connection with assets of a Plan. - 119 - 126
(d) No the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, any other servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a sell such Residual Certificate to a Disqualified Organization purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any other Person will not cause Affiliate of the Trust Fund to cease to qualify as a REMIC or cause Certificate Registrar. The proceeds of such sale, net of the imposition of a tax upon the Trust Fund.
commissions (e) Subject which may include commissions payable to the preceding subsectionsCertificate Registrar or its Affiliates), upon surrender for registration of transfer expenses and taxes due, if any, will be remitted by the Certificate Registrar to such purported Transferee. The terms and conditions of any Certificate at sale under this clause (iii)(B) shall be determined in the office sole discretion of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, not be liable to any Person having an Ownership Interest in the name a Residual Certificate as a result of the designated transferee or transferees, one or more new Certificates its exercise of the same Class of a like aggregate Percentage Interestsuch discretion.
(fiv) At The Trustee shall make available to the option Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any Holderregulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its Certificates record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be exchanged for other Certificates of authorized denominations of accepted by the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receiveTrustee.
(gv) Every Certificate presented or surrendered for transfer or exchange shall The provisions of this Section 5.02(d) set forth prior to this subsection (if so required by the Certificate Registrarv) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer modified, added to or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange eliminated, provided that there shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be have been delivered to the Trustee by at the Certificate Registrar. The Certificate Registrar shall hold expense of the party seeking to modify, add to or eliminate any such canceled Certificates provision the following:
(A) written notification from each Rating Agency to the effect that the modification, addition to or elimination of such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in accordance with its standard procedures.form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset Backed Pass Through Certificates Series 2003-4)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-12 Certificate, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate (the “Private Certificates”) shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Private Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Class CE, then Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to holders of the Owner Trust Certificates (as defined in the Indenture)), the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's ’s prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Private Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Private Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Residual Certificate by the Depositor to an “accredited investor” within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with “Plan Assets” of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. § 2510.3-101 (“Plan Assets”), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with (i) the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any such Class CE, Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that it is not purchasing with Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Certificate Registrar or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner shall require be treated as the prospective transferee beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any Class ___such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, Class ___the Master Servicer, Class ___the Trustee, Class ___the NIMS Insurer and the Trust Fund from and against any and all liabilities, Class ___ claims, costs or Class ___ Certificate to certify, and each prospective transferee expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who has or who acquires any Class ___, Class ___, Class ___, Class ___ or Class ___ Ownership Interest in a Residual Certificate shall be deemed to have represented by its the acceptance or acquisition of such Certificate, that it is neither Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to Permitted Transferee and shall promptly notify the contrary contained herein, prior to registration Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a “Transfer Affidavit and Agreement”), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a “pass-through interest holder” within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a “pass-through interest holder.”
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, by net of the commissions (which may include commissions payable to the Certificate Registrar or its acceptance thereofAffiliates), expenses and taxes due, if any, shall be deemed for all purposes remitted by the Certificate Registrar to have consented such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person will such provisions shall not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions shall not cause any Trust Fund REMIC to cease to qualify as a REMIC and shall not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.instrume
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Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master 106 Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with "Plan Assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Depositor, the Certificate Registrar Trustee and the Master Servicer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee and the Master Servicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the Trustee or the Trust Fund. Unless such Opinion of Counsel is provided, any prospective Transferee of such Certificates must provide a certification in the form of Exhibit G to this Agreement (or other form acceptable to the Depositor, the Trustee and the Master Servicer), which the Trustee may rely upon without further inquiry or investigation. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan investor, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's or S&P or (iii) (▇) ▇▇ is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate or Residual Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMs Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any of REMIC I, REMIC II or REMIC III to cease to qualify as a REMIC and will not cause any of REMIC I, REMIC II or cause REMIC III, as the imposition case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or (y) a Person other than the prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMs Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.s
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Flo Rate Mort Pas THR Cert Ser 01 3)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for 119 the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in 120 the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P o▇ (▇▇▇) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions: 121
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive 122 to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition 123 prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.surrender
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asst Back Pas THR Certs Ser 2003-9)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Residual Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act. 130
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Certificate Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated by shall not be an expense of the preceding sentenceDepositor, the Master Servicer, the NIMS Insurer, the Certificate Registrar Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall require be required in connection with the prospective transferee initial transfer of any Class ___such Certificate by the Depositor to an affiliate of the Depositor (in which case, Class ___the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, Class ___upon the request of the Trustee, Class ___, Class ___ shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P or (iii) (▇) ▇t is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding two paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding two paragraphs shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer, the Certificate Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, by net of the commissions (which may include commissions payable to the Certificate Registrar or its acceptance thereofAffiliates), expenses and taxes due, if any, shall be deemed for all purposes remitted by the Certificate Registrar to have consented such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following: 133
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer and the Certificate Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.same
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Argent Securities Inc Asset Back Thru Cert Series 203-W6)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trusteeis provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, which establishes to the satisfaction of the Certificate Registrar Trustee that the purchase and holding of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P o▇ (▇▇▇) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice that it is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)
(A) such transferee immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or is not holding an Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.surre
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset Back Pas THR Certs Ser 2003 5)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Master Servicer shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Master Servicer in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Master Servicer shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby Master Servicer will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer, the Seller, the Servicer, the Trustee and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The If the Master Servicer shall at any time not be the Certificate Registrar, the Master Servicer shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Non-Offered Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a Definitive Certificatetrust, then the depositor of which is an affiliate of the Depositor or the Seller), the Master Servicer and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: either (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, and F-1 or (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorSeller, the Trustee, FSA, the Servicer, the Trustee or Master Servicer, the Certificate Registrar in their respective capacities as suchor the Trust Fund), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee or Seller, the Certificate Registrar or the Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Private Certificate shall, and does hereby agree to, indemnify the Trustee, FSA, the Seller, the Depositor, the Certificate Registrar Registrar, the Master Servicer and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(ci) None No transfer of an ERISA-Restricted Certificate shall be made unless the Master Servicer shall have received in the form attached hereto as Exhibit F-2 or Exhibit G, as applicable, either (i) a certification letter from the transferee of such Certificate, acceptable to and in form and substance satisfactory to the Master Servicer, to the effect that such transferee is not a Plan or a person using the assets of any such Plan, which representation letter shall not be an expense of the Master Servicer or the Trust Fund, (ii) if the purchaser is an insurance company and the Certificate has been the subject of an ERISA-Qualifying Underwriting, a representation that the purchaser is an insurance company which is purchasing such Certificates except with funds contained in an “insurance company general account” (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in the case of any such Certificate presented for registration in the Class ___, Class ___, Class ___, Class ___name of a Plan or a person acting on behalf of any such Plan, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangementusing such Plan’s assets, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish satisfactory to the satisfaction Master Servicer to the effect that the purchase or holding of the such Certificate Registrar that such transfer will not result in a violation of prohibited transactions under Section 406 of ERISA or and/or Section 4975 of the Code or cause and will not subject the Depositor, the Seller, the Trustee, FSA, the Servicer or the Trustee Master Servicer to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be deemed a fiduciary an expense of such Plan parties or result in the imposition of an excise tax under Section 4975 of the CodeTrust Fund. In the absence event the representations referred to in the preceding sentence are not furnished, such representations shall be deemed to have been made to the Master Servicer by the transferee’s acceptance of its having received an ERISA-Restricted Certificate, or by any beneficial owner who purchases an interest in such Certificate in book-entry form. In the certification event that a representation is violated, or any attempt to transfer an ERISA-Restricted Certificate to a Plan, or a person using a Plan’s assets is attempted without the delivery to the Master Servicer of the opinion of counsel described above, the attempted transfer or acquisition of such Certificate shall be void and of no effect. Neither an Opinion of Counsel contemplated nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor or to a trust, the Certificate Registrar shall require depositor of which is an affiliate of Depositor or the prospective transferee of Seller (in which case, the Depositor, the Seller or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate affiliate thereof shall be deemed to have represented by its acquisition that such affiliate is not a Plan or a Person investing Plan Assets) and the Master Servicer shall be entitled to conclusively rely upon a representation (which, upon the request of the Master Servicer, shall be a written representation) from the Depositor of the status of such Certificatetransferee as an affiliate of the Depositor.
(ii) [Reserved].
(iii) If any Certificate or any interest therein is acquired or held in violation of the provisions of Section 5.02(c)(i), the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Servicer, the Seller, the Trustee, FSA, the Master Servicer, the Certificate Registrar, the Underwriter and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Master Servicer or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Master Servicer of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Master Servicer shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a “Transfer Affidavit and Agreement”), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Master Servicer who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement in the form attached hereto as Exhibit F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the effect Master Servicer stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Master Servicer written notice that it will become insolvent is a “pass-through interest holder” within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a “pass-through interest holder.”
(ii) The Master Servicer will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Master Servicer as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Master Servicer shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Master Servicer shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Master Servicer shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Master Servicer on such terms as the Master Servicer may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Master Servicer. Such purchaser may be the Master Servicer itself or any Affiliate of the Master Servicer. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Master Servicer or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Master Servicer to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Master Servicer, and the Master Servicer shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Master Servicer shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Such information shall be provided by the Master Servicer upon receipt of reasonable compensation.
(v) The provisions of this Section 5.02 5.02(d) set forth prior to this subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Master Servicer and to any amendment of this Agreement deemed necessary by counsel the Certificate Registrar at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Master Servicer and the Certificate Registrar, to the effect that such modification of, addition to or elimination of such provisions will not cause any REMIC created hereunder to cease to qualify as a REMIC and will not cause any REMIC created hereunder, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarMaster Servicer maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent Master Servicer shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarMaster Servicer maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent Master Servicer shall execute - 120 - 127 and authenticate and the Certificate Registrar shall authenticate and deliver the Certificates which that the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.e
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2004-He8)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(ci) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Mezzanine Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with "Plan Assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Depositor, the Certificate Registrar Master Servicer and the Trustee are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee and the Master Servicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated by shall not be an expense of the preceding sentenceDepositor, the Certificate Registrar shall require Master Servicer, the Trustee or the Trust Fund. In lieu of such Opinion of Counsel, any prospective transferee Transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall such Certificates may provide a certification (which the Transferee will be deemed to have represented such certification) of the foregoing in the form of Exhibit G to this Agreement (or other form acceptable to the Depositor, the Trustee and the Master Servicer), which the Trustee may rely upon without further inquiry or investigation. An Opinion of Counsel, any certification or a deemed representation will not be required in connection with the initial transfer of any such Certificate by its the Depositor to an affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. The Transferee of a Mezzanine Certificate that is a Plan, a Person acting, directly or indirectly, on behalf of any such Plan or a person using Plan Assets to acquire Mezzanine Certificates will be deemed to have represented that such acquisition is permissible under applicable law, will not constitute or result in any non-exempt prohibited transaction under ERISA or Section 4975 of the Code, will not subject the Depositor, the Master Servicer, the Trustee or the Trust Fund to any obligation in addition to those undertaken in this Agreement and the following conditions are met: (a) the source of funds used to purchase such Mezzanine Certificates is an "insurance company general account" (as such term is defined in PTCE 95-60), (b) the conditions set forth in Sections I and III of PTCE 95-60 have been satisfied and (c) there is no Plan with respect to which the amount of such general account's reserves and liabilities for contracts held by or on behalf of such Plan and all other Plans maintained by the same employer (or any "affiliate" thereof, as defined in PTCE 95-60) or by the same employee organization exceed 10% of the total of all reserves and liabilities of such general account (as determined under PTCE 95-60) as of the date of the acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126Mezzanine Certificates.
(dii) No transfer of a Class CE Certificate, Class P Certificate or Residual Certificate or any interest therein shall be made to any Plan subject to ERISA or Section 4975 of the Code, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets") unless the Depositor, the Master Servicer and the Trustee are provided with an Opinion of Counsel which establishes to the satisfaction of the Depositor, the Trustee and the Master Servicer that the purchase of such Certificates is permissible under applicable law, will not constitute or result in any prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Depositor, the Master Servicer, the Trustee or the Trust Fund to any obligation or liability (including obligations or liabilities under ERISA or Section 4975 of the Code) in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Depositor, the Master Servicer, the Trustee or the Trust Fund.
(i) Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any of REMIC I, REMIC II or REMIC III to cease to qualify as a REMIC and will not cause any of REMIC I, REMIC II or cause REMIC III, as the imposition case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or (y) a Person other than the prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Tr
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Floating Rate Mort Pass Through Cert Series 2000-1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor 124 regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides Depositor, the Certificate Registrar Trustee and the Master Servicer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee and the Master Servicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan investor, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by ▇▇▇▇▇'▇, Fitch or S&P or (iii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate or Residual Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice that it is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)
(A) such transferee immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or is not holding an Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee 126 shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.tr
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asset Backed Thru Cer Ser 2002-5)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___X Certificate, Class ___B-IO Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class X Certificate, Class B-IO Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a Definitive Certificatetrust, then the depositor of which is an affiliate of the Seller), the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___X Certificates, Class ___B-IO Certificates, the Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class X Certificate, a Class B-IO Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the Class ___a Subordinated Certificate, Class ___B-IO Certificate, Class ___X Certificate, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with "Plan Assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated at 29 C.F.R. § 2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Depositor, the Certificate Registrar Trustee and the Master Servicer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee and the Master Servicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code) in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Depositor, the Master Servicer, the Trustee or the Trust Fund. In the absence case of its having received the certification and Subordinated Certificates, in lieu of such Opinion of Counsel contemplated by Counsel, any prospective Transferee of such Certificates may provide a certification (which in the preceding sentencecase of the Subordinated Certificates sold in book-entry form, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall Transferee will be deemed to have represented by its acquisition such certification) in the form of such CertificateExhibit G to this Agreement (or other form acceptable to the Depositor, that it is neither (A) a Plan the Trustee and the Master Servicer), which the Trustee may rely upon without further inquiry or investigation. Neither an Opinion of Counsel nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or certification will be required in connection with assets of a Plan. - 119 - 126
(d) No the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Subordinated Certificate, Class X Certificate, Class B-IO Certificate, Class P Certificate or Residual Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement in the form attached hereto as Exhibit F-2 ) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset Backed Sec Corp Home Equity Loan Series 2000 Lb1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.11 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Residual Certificate is to be made without registration or qualification and is to be made in connection with qualification, the issuance or transfer of a Definitive CertificateTrustee, then the Certificate Registrar and the Certificate Insurer shall require, in order to assure compliance with such laws, each require receipt of: of (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification under the 1933 Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar Insurer in their respective capacities its capacity as such), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially upon which such Opinion of Counsel is based, if any; provided, however, that no such opinion shall be required in connection with the form attached as Exhibit E heretotransfers effected on the Closing Date. None of the Depositor, the Trustee Certificate Registrar, the Certificate Insurer or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar Registrar, the Certificate Insurer and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Residual Certificate or any interest therein shall be transferred made to (Ai) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns ▇▇ plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code (each, a "Plan") or (Bii) any Person who is directly or indirectly purchasing any such Class the Residual Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Trustee and the Certificate Registrar are provided with a certification of facts and or an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar each that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause any of the Servicer Trustee, the Certificate Registrar or the Trustee Master Servicer to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and of facts or Opinion of Counsel contemplated by the preceding sentence, the Trustee and the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Residual Certificate to certifycertify either (a) it is not a Plan, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate, (b) that it is neither (Ai) a Plan nor (Bii) a Person who is directly or indirectly purchasing any such Class Certificates the Residual Certificate on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126Plan (including any insurance company using funds in its general or separate accounts that may constitute "plan assets") or (c) that (i) it is an insurance company and (ii) all of the funds to be used by it to purchase the Certificates to be purchased by it are held in an "insurance company general account" (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such Certificates are covered by PTCE 95-60.
(di) No transfer of Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it, and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of, an affidavit and agreement (a "Transfer Affidavit and Agreement" attached hereto as Exhibit E) from the proposed transferee substantially Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement (in the form attached hereto as Exhibit F-1 hereto, E) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit E) to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-I(b)(5) and 1.860E-2(a)(5) with respect to the excess " inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any REMIC created hereunder to cease to qualify as a REMIC and will not cause any REMIC created hereunder to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.11, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.11. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hg) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ih) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard customary procedures.
(i) The Trustee will cause the Certificate Registrar (unless the Trustee is acting as Certificate Registrar) to provide notice to the Trustee of each transfer of a Certificate and to provide the Trustee with an updated copy of the Certificate Register on the first Business Day in January and June of each year, commencing January 2000.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-10 Certificate, Class ___M-11 Certificate, Class ___CE Certificate, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate (the "Private Certificates") shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Private Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Class CE, then Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Private Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in the Class ___M-10 Certificates and the Class M-11 Certificates is to be made without registration under the 1933 146 Act (other than in connection with the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, Class ___then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder's prospective transferee (which in the case of the Book-Entry Certificates, the Certificateholder and the Certificateholder's prospective transferee shall be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Private Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Residual Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with (i) the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any such Class CE, Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that it is not purchasing with Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Certificate Registrar or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner shall require be treated as the prospective transferee beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any Class ___such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, Class ___the Master Servicer, Class ___the Trustee, Class ___the NIMS Insurer and the Trust Fund from and against any and all liabilities, Class ___ claims, costs or Class ___ Certificate to certify, and each prospective transferee expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who has or who acquires any Class ___, Class ___, Class ___, Class ___ or Class ___ Ownership Interest in a Residual Certificate shall be deemed to have represented by its the acceptance or acquisition of such Certificate, that it is neither Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to Permitted Transferee and shall promptly notify the contrary contained herein, prior to registration Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the 148 Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, by net of the commissions (which may include commissions payable to the Certificate Registrar or its acceptance thereofAffiliates), expenses and taxes due, if any, shall be deemed for all purposes remitted by the Certificate Registrar to have consented such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person will such provisions shall not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions shall not cause any Trust Fund REMIC to cease to qualify as a REMIC and shall not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged maintained for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates such purpose pursuant to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Section 8.1
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Master Servicer shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Master Servicer in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Master Servicer shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby Master Servicer will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, the Seller, the Master Servicer, the Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The If the Master Servicer shall at any time not be the Certificate Registrar, the Master Servicer shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Non-Offered Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a Definitive Certificatetrust, then the depositor of which is an affiliate of the Depositor or the Seller), the Master Servicer and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: either (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, and F-1 or (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorSeller, the Trustee, the Servicer, the Trustee or Master Servicer, [__________], the Certificate Registrar or the Trust Fund). In the event that neither a certification referenced in their respective capacities as such)(i) above or an Opinion of Counsel referenced in (ii) above are furnished, (B) the representations set forth in Exhibit F-1 shall be deemed to have been made to the Trust Administrator by the transferee’s acceptance of a certificate from the Certificateholder desiring to effect Non-Offered Certificate by any beneficial owner who purchases an interest in such transfer substantially Certificate in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretobook-entry form. None of the Depositor, the Trustee or Seller, the Certificate Registrar or the Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Non-Offered Certificate shall, and does hereby agree to, indemnify the Trustee, the Seller, the Depositor, the Master Servicer, [__________], the Certificate Registrar and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(ci) None No transfer of an ERISA-Restricted Certificate shall be made unless the Master Servicer shall have received in the form attached hereto as Exhibit F-2 or Exhibit G, as applicable, either (i) a certification letter from the transferee of such Certificate, acceptable to and in form and substance satisfactory to the Master Servicer, to the effect that such transferee is not a Plan or a person using the assets of any such Plan, which representation letter shall not be an expense of the Master Servicer or the Trust Fund, (ii) if the purchaser is an insurance company and the Certificate has been the subject of an ERISA-Qualifying Underwriting, a representation that the purchaser is an insurance company which is purchasing such Certificates except with funds contained in an “insurance company general account” (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in the case of any such Certificate presented for registration in the Class ___, Class ___, Class ___, Class ___name of a Plan or a person acting on behalf of any such Plan, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangementusing such Plan’s assets, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish satisfactory to the satisfaction Master Servicer to the effect that the purchase or holding of the such Certificate Registrar that such transfer will not result in a violation of prohibited transactions under Section 406 of ERISA or and/or Section 4975 of the Code and will not subject the Depositor, the Seller, the Master Servicer, [__________], the Trustee or cause the Servicer to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of such parties or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the CodeTrust Fund. In the absence event the representations referred to in the preceding sentence are not furnished, such representations shall be deemed to have been made to the Master Servicer by the transferee’s acceptance of its having received an ERISA-Restricted Certificate, or by any beneficial owner who purchases an interest in such Certificate in book-entry form. In the certification event that a representation is violated, or any attempt to transfer an ERISA-Restricted Certificate to a Plan, or a person using a Plan’s assets is attempted without the delivery to the Master Servicer of the opinion of counsel described above, the attempted transfer or acquisition of such Certificate shall be void and of no effect. Neither an Opinion of Counsel contemplated nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor or to a trust, the Certificate Registrar shall require depositor of which is an affiliate of the prospective transferee of Depositor or the Seller (in which case, the Depositor or the Seller, or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate affiliate thereof shall be deemed to have represented by its acquisition that such affiliate is not a Plan or a Person investing Plan Assets) and the Master Servicer shall be entitled to conclusively rely upon a representation (which, upon the request of the Master Servicer, shall be a written representation) from the Depositor of the status of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, transferee as named fiduciary of, as trustee of, or with assets an affiliate of a Plan. - 119 - 126the Depositor.
(dii) No transfer of an ERISA-Restricted Swap Certificate prior to the termination of the Swap Agreement shall be made unless the Master Servicer shall have received a representation letter from the transferee of such Certificate to the effect that either (i) such transferee is neither a Plan nor a Person acting on behalf of any such Plan or using the assets of any such Plan to effect such transfer or (ii) the acquisition and holding of the ERISA-Restricted Swap Certificate are eligible for exemptive relief under Prohibited Transaction Class Exemption (“PTCE”) 84-14, PTCE 90-1, PTCE 91-38, PTCE 95-60 or PTCE 96-23. Notwithstanding anything else to the contrary herein, any purported transfer of an ERISA-Restricted Swap Certificate prior to the termination of the Swap Agreement or on behalf of a Plan without the delivery to the Master Servicer of a representation letter as described above shall be void and of no effect. If the ERISA-Restricted Swap Certificate is a Book-Entry Certificate, the transferee will be deemed to have made a representation as provided in this paragraph.
(iii) If any Certificate or any interest therein is acquired or held in violation of the provisions of Section 5.02(c)(i) or (ii), the next preceding permitted beneficial owner will be treated as the beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Servicer, the Seller, the Trustee, the Master Servicer, [__________], the Certificate Registrar, the Underwriter and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Master Servicer or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Master Servicer of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Master Servicer shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a “Transfer Affidavit and Agreement”), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, Master Servicer or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Master Servicer who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement in the form attached hereto as Exhibit F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the effect Master Servicer stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Master Servicer written notice that it will become insolvent is a “pass-through interest holder” within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a “pass-through interest holder.”
(ii) The Master Servicer will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Master Servicer as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Master Servicer shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Master Servicer shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Master Servicer shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Master Servicer on such terms as the Master Servicer may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Master Servicer. Such purchaser may be the Master Servicer itself or any Affiliate of the Master Servicer. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Master Servicer or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Master Servicer to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Master Servicer, and the Master Servicer shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Master Servicer shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Such information shall be provided by the Master Servicer upon receipt of reasonable compensation.
(v) The provisions of this Section 5.02 5.02(d) set forth prior to this subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Master Servicer and to any amendment of this Agreement deemed necessary by counsel the Certificate Registrar at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause the Trust Fund such Rating Agency to cease to qualify as a REMIC or cause the imposition downgrade its then-current ratings of a tax upon the Trust Fund.any Class of Certificates; and
(eB) Subject an Opinion of Counsel, in form and substance satisfactory to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of Master Servicer and the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed byeffect that such modification of, the Holder thereof addition to or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate elimination of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.provisions will not cause any
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset Backed Securities Corp)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, the Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___X Certificate, Class ___B-IO Certificates, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class X Certificate, Class B-IO Certificates, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a Definitive Certificatetrust, then the depositor of which is an affiliate of the Seller), the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: either (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, and F-1 or (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorTrustee, the Servicer, the Trustee Certificate Registrar or the Certificate Registrar in their respective capacities as suchTrust Fund), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___X Certificates, Class ___B-IO Certificates, the Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class X Certificate, a Class B-IO Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.. 103
(c) None (i) No transfer of the Certificates except for the a Class ___X Certificate, a Class B-IO Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to any Plan, any Person acting, directly or indirectly, on behalf of any such Plan or any Person (Aother than in connection with the initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a trust, the depositor of which is an affiliate of the Seller) any employee benefit acquiring such Certificates with "plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, determined under other applicable law unless the prospective transferee provides Depositor, the Certificate Registrar Trustee and the Servicer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee and the Servicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Servicer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar shall require the prospective transferee of Depositor or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate affiliate thereof shall be deemed to have represented by its acquisition of that such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee affiliate is not a Disqualified Organization Plan or an agent (including a broker, nominee or middlemanPerson investing Plan Assets) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as and the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder conclusively rely upon a representation (which, upon the request of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereofTrustee, shall be deemed for all purposes to have consented to a written representation) from the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel Depositor of the Depositor to ensure that the transfer status of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify such transferee as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office an affiliate of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage InterestDepositor.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset Backed Sec Corp Home Equity Loan Trust Series 2001 He3)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall be maintained keep at the office of or agency to be maintained in accordance with Section 12.02 a "Certificate Register" in which the Certificate Registrar a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (appoints itself to be the "Certificate Registrar" and hereby agrees to act) as Certificate Registrar transfer agent for the purpose of registering Certificates and transfers and exchanges of Certificates as herein providedprovided herein. Promptly after the Closing Date the Trustee will give the Master Servicer, in writing, the names of all Class R Certificateholders and the Trustee will give the Master Servicer, prompt written notice of any change in the Class R Certificateholders. The Certificate Registrar may appoint, by a Trustee will give prompt written instrument delivered notice to Certificateholders and the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved Master Servicer of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth change in the Certificate RegisterRegistrar.
(b) No transfer transfer, sale, pledge or other disposition of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ R Certificate or Private Certificate or any interest therein (including any transfer by a Certificateholder of any interest in a Book-Entry Certificate) shall be made unless that such transfer is made pursuant to an effective registration statement under the Act, Securities Act and effective registration or qualification under applicable state securities laws, laws or is made in a transaction which that does not require such registration or qualification. If Until such time as the Class R Certificates or the Private Certificates shall be registered pursuant to a registration statement filed under the Securities Act, the Class R Certificates and the Private Certificates, respectively, shall bear a legend to the effect set forth in the preceding sentence. In the event that registration of a transfer is to be made without registration of a Class R Certificate or qualification and Private Certificate or any interest therein (including any transfer by a Certificateholder of any interest in a Book-Entry Certificate) is to be made in connection reliance upon the exemption from registration under the Securities Act contained in Rule 144A, such transfer shall be made only to a Qualified Institutional Buyer which is aware that the transfer of such Certificate is being made in reliance on Rule 144A and is acquiring such Certificate for its own account or for the account of a Qualified Institutional Buyer, as the case may be, and such transferee shall be deemed to have represented that the foregoing is true and correct and that such transferee understands that such Certificates have not been and will not be registered under the Securities Act and may not be reoffered, resold, pledged or otherwise transferred except (A) to a person who such transferee reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A and (B) in accordance with all applicable securities laws of the issuance or states of the United States. In the event that registration of a transfer of a Definitive Class R Certificate or Private Certificate or any interest therein (including any transfer by a Certificateholder of any interest in a Book-Entry Certificate, then ) is to be made in reliance upon an exemption from registration under the Certificate Registrar shall require, Securities Act (other than the exemption from registration contained in Rule 144A) and applicable state securities laws in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Securities Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D hereto, and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transfereethe transferee shall deliver to the Trustee, the Company and the Master Servicer an Opinion of Counsel satisfactory to the Certificate Registrar to the effect (which may be internal counsel) that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be pursuant to an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as such), (B) a certificate exemption from the Certificateholder Securities Act (other than the exemption from registration contained in Section 3(a)(2) thereof). The Holder of a Class R Certificate or a Private Certificate desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee or the Certificate Registrar is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificates under the Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ such Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate Registrar Company and the Depositor Master Servicer against any liability that may result if the such transfer is not so exempt or is not made in accordance with such federal and state laws. Neither the Master Servicer, the Company, the Certificate Registrar, the Paying Agent, the Seller nor the Trustee is obligated to register the Class R Certificates or the Private Certificates under the Securities Act or under any state securities laws. Prospective transferors of Class R Certificates or Private Certificates (or Book-Entry Certificates), and prospective transferees of Certificates (or Book-Entry Certificates) that are Qualified Institutional Buyers buying Certificates in reliance upon Rule 144A may request from the Master Servicer information regarding the Trust and the Trust assets. Within five (5) Business Days of any such request, the Master Servicer shall deliver to any such prospective transferor or transferee (i) a copy of each Monthly Report delivered to Certificateholders since the first Distribution Date pursuant to Section 6.05, (ii) information relating to the Seller, the Master Servicer, the Mortgage Loans and this Agreement substantially in the form of the Prospectus dated April 8, 1997 and the Prospectus Supplement relating to the Certificates, dated July 31, 1998 and (iii) such other information as may be required to comply with Rule 144A and any interpretation thereof.
(c) None As a condition to the registration of any Transfer of any Private Certificate, the Certificates except for prospective transferee shall deliver to the Class ___, Class ___, Class ___, Class ___, or any interest therein shall be transferred to Certificate Registrar and the Trustee a certificate substantially in the form attached hereto as Exhibit P (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "PlanPrivate Certificate Transferee Letter") or shall supply other evidence to the same effect satisfactory to the Master Servicer.
(Bd) any Each Person who is directly has or indirectly purchasing who acquires any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result Ownership Interest in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ R Certificate shall be deemed to have represented by its the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Master Servicer as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (vi) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale, and the rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Master Servicer of any change or impending change in its status as a Permitted Transferee.
(ii) No Ownership Interest in a Class R Certificate may be Transferred without the express written consent of the Master Servicer, and the Trustee shall not register the Transfer of any Class R Certificate without such consent with respect to any proposed Transfer. In connection with any proposed Transfer of any Ownership Interest in a Class R Certificate, that it is neither the Master Servicer shall, as a condition to such consent, require delivery to it, form and substance satisfactory to it, and the proposed Transferee shall deliver to the Master Servicer, the following:
(A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from (a "Transfer Affidavit") of the proposed transferee substantially Transferee, in the form attached as Exhibit F-1 M hereto, that it is not a "disqualified organization" within the meaning of Section 860E(e)(5) of the Code, and that the proposed Transferee is not acquiring its Ownership Interest in the Class R Certificate as a nominee, trustee or agent for, or for the benefit of, any Person who is not a Permitted Transferee; and
(B) an express agreement by the proposed Transferee to be bound by and to abide by the effect thatprovisions of this Section and the restrictions noted on the face of the Class R Certificates.
(iii) Notwithstanding the delivery of a Transfer Affidavit by a proposed Transferee under clause (ii) above, among other thingsif the Master Servicer has actual knowledge that the Transfer Affidavit is false, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(iv) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (A) to require a Transfer Affidavit from any other Person to whom such transferee is not Person attempts to Transfer its Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, Class R Certificate and (B) not to Transfer its Ownership Interest in a Class R Certificate or to cause the Transfer of an Ownership Interest in a Class R Certificate to any other Person if it has actual knowledge that such transferee Transfer Affidavit is not a Non- U.S. Person, false.
(Cv) such transferee has no present knowledge Any attempted or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection purported Transfer of any tax, and (ii) Ownership Interest in a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Class R Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then shall be absolutely null and void and shall vest no rights in the prior purported Transferee. If any purported Transferee shall become a Holder of a Class R Certificate in violation of the Residual Certificate purportedly transferred shallprovisions of this Section, then, upon discovery, discovery by or due notification of the Trustee that the transfer registration of Transfer of such Residual Class R Certificate was not in fact permitted by this Section 5.02(d)Section, the last preceding Permitted Transferee shall be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Class R Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this AgreementAgreement so long as the Transfer was registered with the express prior written consent of the Master Servicer. The prior Holder Trustee shall be entitled but not obligated to recover from any purported Holder of a Residual Class R Certificate that was in fact not a permitted transferee under this Section 5.02(d) Permitted Transferee at the time it became a Holder or, at such subsequent time as it became other than a Permitted Transferee, all payments made on such Residual Class R Certificate at and after either such time. Any such payments so recovered by the Trustee shall be paid and delivered by the Trustee to the last preceding Permitted Transferee of such Certificate. The .
(vi) If any purported Transferee shall become a Holder of Residual Certificatesa Class R Certificate in violation of the restrictions in this Section, by its acceptance thereof, then the Master Servicer shall be deemed for all purposes to have consented the right without notice to the provisions Holder or any prior Holder of this Section 5.02 and such Class R Certificate, to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual sell such Class R Certificate to a Disqualified Organization purchaser selected by the Master Servicer on such terms as the Master Servicer may choose. Such purchaser may be the Master Servicer itself or any Affiliate of the Master Servicer. The proceeds of such sale, net of commissions (which may include commissions payable to the Master Servicer or its Affiliates), expenses and taxes due, if any, will be remitted by the Master Servicer to the last preceding Permitted Transferee of such Class R Certificate, except that in the event that the Master Servicer determines that the Holder or any prior Holder of such Class R Certificate may be liable for any amount due under this Section or any other provision of this Agreement, the Master Servicer may withhold a corresponding amount from such remittance as security for such claim. The terms and conditions of any sale under this clause (vi) shall be determined in the sole discretion of the Master Servicer, and it shall not be liable to any Person having an Ownership Interest in a Class R Certificate as a result of its exercise of such discretion. Upon notice to the Master Servicer that any legal or beneficial interest in any portion of a Class R Certificate has been transferred, either directly or indirectly to any person that is not a Permitted Transferee or an agent (including a broker, nominee, or middleman) of such Transferee in contravention of the foregoing restrictions, the Master Servicer agrees to furnish to the Internal Revenue Service and to the transferor of such Class R Certificate or such agent such information necessary to the application of Section 860E(e) of the Code as may be required by the Code or any regulations or administrative pronouncements thereunder, including but not limited to the present value of the total anticipated excess inclusions with respect to such Class R Certificate (or portion thereof) for periods after such transfer. At the election of the Master Servicer, the Master Servicer may charge a reasonable fee for computing and furnishing such information to the transferor or to such agent referred to above; however, the Master Servicer shall in no event be excused from furnishing such information to the Internal Revenue Service. The foregoing restrictions on transfer contained in this Section 9.02(d) shall cease to apply to Transfers occurring on or after the date on which there shall have been delivered to the Trustee, the Company and the Master Servicer, in form and substance satisfactory to the Master Servicer, an Opinion of Counsel that eliminating such restrictions will not cause any of the Trust Fund REMICs to cease fail to qualify as a REMIC or cause at any time while the imposition of a tax upon the Trust FundCertificates are outstanding.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holdera Certificateholder, its Certificates may be exchanged for other Certificates of the same Class of authorized denominations of the same Class of a like aggregate Percentage Interestdenomination, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrarsuch office. Whenever any Certificates are so surrendered for exchange exchange, the Company shall execute and deliver, and the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver authenticate, the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or shall be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his or her attorney duly authorized in writing.
(hf) No service charge Except as provided in paragraph (g) below the Book-Entry Certificates shall at all times remain registered in the name of the Depository or its nominee and at all times:
(i) registration of the Offered Certificates may not be transferred by the Trustee except to another Depository; (ii) the Depository shall maintain book-entry records with respect to the Certificateholders and with respect to ownership and transfers of such Offered Certificates; (iii) ownership and transfers of registration of the Offered Certificates on the books of the Depository shall be imposed governed by applicable rules established by the Depository; (iv) the Depository may collect its usual and customary fees, charges and expenses from its Depository Participants; (v) the Trustee shall deal with the Depository, Depository Participants and indirect participating firms as representatives of the Certificateholders of the Offered Certificates for any purposes of exercising the rights of Holders under this Agreement, and requests and directions for and votes of such representatives shall not be deemed to be inconsistent if they are made with respect to different Certificateholders; and (vi) the Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its Depository Participants and furnished by the Depository Participants with respect to indirect participating firms and persons shown on the books of such indirect participating firms as direct or indirect Certificateholders. All transfers by Certificateholders of Book-Entry Certificates shall be made in accordance with the procedures established by the Depository Participant or brokerage firm representing such Certificateholder. Each Depository Participant shall only transfer Book-Entry Certificates of Certificates Owners it represents or exchange of Certificatesbrokerage firms for which it acts as agent in accordance with the Depository's normal procedures.
(g) If (x)(i) the Company or the Depository advises the Trustee in writing that the Depository is no longer willing or able properly to discharge its responsibilities as Depository, but and (ii) the Trustee or the Certificate Registrar may require payment Company is unable to locate a qualified successor, or (y) the Company at its sole option advises the Trustee in writing that it elects to terminate the book-entry system through the Depository, the Trustee shall notify all Certificateholders, through the Depository, of a sum sufficient the occurrence of any such event and of the availability of definitive, fully registered Offered Certificates (the "Definitive Certificates") to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by Certificateholders requesting the Certificate Registrar and a certificate of such cancellation shall be delivered same. Upon surrender to the Trustee of the Offered Certificates by the Certificate Registrar. The Certificate Registrar Depository, accompanied by registration instructions from the Depository for registration, the Trustee shall hold such canceled Certificates in accordance with its standard procedures.i
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Cit Group Securitization Corp Iii)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.11 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeServicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Residual Certificate is to be made without registration or qualification qualification, the Trustee and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification under the 1933 Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar Servicer in their respective capacities its capacity as such), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar Registrar, the Servicer and the Depositor Certificate Insurer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Residual Certificate or any interest therein shall be transferred to made unless the prospective transferee of any Residual Certificate certifies that it is not (Ai) any an employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns ▇▇ plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code (each, a "Plan") or (Bii) any a Person who is directly or indirectly purchasing any such Class the Residual Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result .
(i) Each Person who has or who acquires any Ownership Interest in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Residual Certificate shall be deemed to have represented by its the acceptance or acquisition of such Certificate, that it is neither Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to Permitted Transferee and shall promptly notify the contrary contained herein, prior to registration Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it, and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of, an affidavit agreement (a "Transfer Affidavit and Agreement" attached hereto as Exhibit F-2) from the proposed transferee substantially Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement (in the form attached hereto as Exhibit F-1 hereto, F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate such provisions will not cause such Rating Agency to a Disqualified Organization downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or any other Person elimination of such provisions will not cause the REMIC Trust Fund to cease to qualify as a REMIC or and will not cause the imposition REMIC Trust to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or (y) a Person other than the prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.11, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.11. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hg) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ih) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard customary procedures.
(i) The Trustee will cause the Certificate Registrar (unless the Trustee is acting as Certificate Registrar) to provide notice to the Trustee of each transfer of a Certificate and to provide the Trustee with an updated copy of the Certificate Register on the first Business Day in January and June of each year, commencing January 1998.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-10 Certificate, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class M-10 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, (ii) the transfer of any such Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___M-10 Certificates, the Class ___CE Certificates, the Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in the Class ___M-10 Certificates is to be made without registration under the 1933 Act (other than in connection with (i) the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, Class ___(ii) the transfer of any such Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any such Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), Class ___then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder's prospective transferee (which in the case of the Book-Entry Certificates, the Certificateholder and the Certificateholder's prospective transferee shall be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Class M-10 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee, the NIMS Insurer, the Certificate Insurer and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Certificate Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated by shall not be an expense of the preceding sentenceDepositor, the Master Servicer, the NIMS Insurer, the Certificate Registrar Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall require be required in connection with (i) the prospective transferee initial transfer of any Class ___such Certificate by the Depositor to an affiliate of the Depositor, Class ___, Class ___, Class ___, Class ___ or Class ___ (ii) the transfer of any such Certificate to certify, and each prospective transferee the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any Class ___, Class ___, Class ___, Class ___ such Certificate from the issuer under the Indenture or Class ___ Certificate the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case such transferee shall be deemed to have represented by its acquisition of such Certificate, that it is neither not purchasing with Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (Awhich, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of the Mezzanine Certificates or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is not a Plan nor or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (Bii) for Mezzanine Certificates other than the Class M-10 Certificates it has acquired and is holding such Mezzanine Certificates (other than the Class M-10 Certificates) in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Certificates (other than the Class M-10 Certificates) must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P o▇ (▇▇▇) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer, the Certificate Insurer, and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice that it is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)
(A) such transferee immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or is not holding an Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder 141 of such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a sell such Residual Certificate to a Disqualified Organization purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any other Person will not cause Affiliate of the Trust Fund to cease to qualify as a REMIC or cause Certificate Registrar. The proceeds of such sale, net of the imposition of a tax upon the Trust Fund.
commissions (e) Subject which may include commissions payable to the preceding subsectionsCertificate Registrar or its Affiliates), upon surrender for registration of transfer expenses and taxes due, if any, shall be remitted by the Certificate Registrar to such purported Transferee. The terms and conditions of any Certificate at sale under this clause (iii)(B) shall be determined in the office sole discretion of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, not be liable to any Person having an Ownership Interest in the name a Residual Certificate as a result of the designated transferee or transferees, one or more new Certificates its exercise of the same Class of a like aggregate Percentage Interestsuch discretion.
(fiv) At The Trustee shall make available to the option Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any Holderregulated investment company, its Certificates may be exchanged for other Certificates real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.the
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor 129 regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides Depositor, the Certificate Registrar Trustee and the Master Servicer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee and the Master Servicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan investor, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P o▇ (▇▇▇) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate or Residual Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice that it is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)
(A) such transferee immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or is not holding an Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee 131 shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.tr
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mortgage Securities Inc as Bk Ps THR CRTS Se 02-4)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ B Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If In the event that such a transfer of a Class B Certificate is to be made without registration or qualification qualification, the Trustee and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall each require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer, and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar Master Servicer in their respective capacities its capacity as such), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based. None of the Depositor, the Trustee or Master Servicer, the Certificate Registrar or the Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ B Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class B Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the a Class ___, Class ___, Class ___, Class ___, B Certificate or Residual Certificate or any interest therein shall be transferred made to (Ai) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ K▇▇▇ns ▇ plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code (each, a "Plan") or (Bii) any Person who is directly or indirectly purchasing any such the Class B Certificate or Residual Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Trustee and the Certificate Registrar are provided with a certification of facts and or an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar each that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause any of the Servicer Trustee, the Certificate Registrar or the Trustee Master Servicer to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and of facts or Opinion of Counsel contemplated by the preceding sentence, the Trustee and the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ B Certificate or Class ___ Residual Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate, certify either (a) that it is neither (Ai) a Plan nor (Bii) a Person who is directly or indirectly purchasing any such the Class Certificates B Certificate or Residual Certificate on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126Plan (including any insurance company using funds in its general or separate accounts that may constitute "plan assets") or (b) that it is an insurance company and that the source of funds used to purchase the Class B Certificate or Residual Certificates is an "insurance company general account" (as such term is defined in Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and there is no Plan with respect to which the amount of such general account's reserves and liabilities for the contract(s) held by or on behalf of such Plan and all other Plans maintained by the same employer (or an "affiliate" thereof within the meaning of PTCE 95-60) or by the same employee organization exceed 10% of the total of all reserves and liabilities of such general account (as such amounts are determined under PTCE 95-60) as of the date of acquisition of such Certificates.
(di) No transfer of Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it, and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of, an affidavit and agreement (a "Transfer Affidavit and Agreement" attached hereto as Exhibit F-3) from the proposed transferee substantially Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the form Residual Certificates that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate (attached hereto as Exhibit F-1 hereto, F-3) to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder".
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is not a NonUnited States Person or a Disqualified Organization.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Administrator shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5)with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Administrator.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to this subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee the following:
(A) written notification from the Rating Agency to the effect that the modification, addition to or elimination of such provisions will not cause such Rating Agency to downgrade its then-current ratings of any amendment Class of this Agreement deemed necessary by counsel Certificates; and
(B) an Opinion of Counsel, at the expense of the Depositor party seeking to ensure modify, add to or eliminate such provisions, in form and substance satisfactory to the Trustee, to the effect that the transfer such modification of, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause the Trust Fund to cease to qualify as a REMIC and will not cause (x) the Trust Fund to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-related tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hg) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ih) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard customary procedures.
(i) The Trustee will cause the Certificate Registrar (unless the Trustee is acting as Certificate Registrar) to provide notice to the Trustee of each transfer of a Certificate and to provide the Trustee with an updated copy of the Certificate Register on the first Business Day in January and June of each year, commencing June 1996.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Brothers Mor Sec Vii Inc Mor Pa THR Cer Ser 1995 3)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act. 106
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides Depositor, the Certificate Registrar Trustee and the Master Servicer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee and the Master Servicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan investor, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by ▇▇▇▇▇'▇, Fitch or S&P or (iii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate or Residual Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute 107 all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice that it is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)
(A) such transferee immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or is not holding an Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall 108 have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following: 109
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate Registrar. Whenever any Certificates are so surrendered Trustee maintained for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.purpose pursua
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asset Back Cert Ser 2003 Ar1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-9 Certificate, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class M-9 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___M-9 Certificates, the Class ___CE Certificates, the Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class M-9 Certificate, a Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against 139 any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee, the NIMS Insurer, the Certificate Insurer, the Trust Fund and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Certificate Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated by shall not be an expense of the preceding sentenceDepositor, the Master Servicer, the NIMS Insurer, the Certificate Registrar Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall require be required in connection with the prospective transferee initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor.
(1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. 140 If any Class ___CE Certificate, Class ___P Certificate, Class ___Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, Class ___, Class ___ the next preceding permitted beneficial owner shall be treated as the beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or Class ___ Certificate to certify, and each prospective transferee holding of any Class ___such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, Class ___the Master Servicer, Class ___the Trustee, Class ___ the NIMS Insurer, the Certificate Insurer and the Trust Fund from and against any and all liabilities, claims, costs or Class ___ expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be deemed to have represented by its the acceptance or acquisition of such Certificate, that it is neither Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to Permitted Transferee and shall promptly notify the contrary contained herein, prior to registration Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating 141 that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, by net of the commissions (which may include commissions payable to the Certificate Registrar or its acceptance thereofAffiliates), expenses and taxes due, if any, shall be deemed for all purposes remitted by the Certificate Registrar to have consented such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person will such provisions shall not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions shall not cause any Trust Fund REMIC to cease to qualify as a REMIC and shall not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer and the Certificate Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent Trustee, shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.for
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeServicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___B-4, Class ___C, Class ___, Class ___, Class ___ and Class ___ P or Residual Certificate (the "Private Certificates") shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Private Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, (ii) the transfer of any such Class C, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Class C, then Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorTrustee, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Private Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in the Class ___B-4 Certificates is to be made without registration under the 1933 Act (other than in connection with the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor), Class ___then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder's prospective transferee (which in the case of the Book-Entry Certificates, the Certificateholder and the Certificateholder's prospective transferee shall be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Private Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Residual Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee and the Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Servicer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with (i) the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor, (ii) the transfer of any such Class C, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any such Class C, Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that it is not purchasing with Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Certificate Registrar or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner shall require be treated as the prospective transferee beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any Class ___such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, Class ___the Servicer, Class ___the Trustee and the Trust Fund from and against any and all liabilities, Class ___claims, Class ___ costs or Class ___ Certificate to certify, and each prospective transferee expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who has or who acquires any Class ___, Class ___, Class ___, Class ___ or Class ___ Ownership Interest in a Residual Certificate shall be deemed to have represented by its the acceptance or acquisition of such Certificate, that it is neither Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to Permitted Transferee and shall promptly notify the contrary contained herein, prior to registration Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, by net of the commissions (which may include commissions payable to the Certificate Registrar or its acceptance thereofAffiliates), expenses and taxes due, if any, shall be deemed for all purposes remitted by the Certificate Registrar to have consented such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person will such provisions shall not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions shall not cause any Trust Fund REMIC to cease to qualify as a REMIC and shall not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.exch
Appears in 1 contract
Sources: Pooling and Servicing Agreement (GE-WMC Mortgage Securities, L.L.C.)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeServicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___B-4, Class ___C, Class ___, Class ___, Class ___ and Class ___ P or Residual Certificate (the "PRIVATE CERTIFICATES") shall be made unless that transfer is made pursuant to an effective registration statement under the ActSecurities Act of 1933, as amended (the "1933 ACT"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Private Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, (ii) the transfer of any such Class C, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Class C, then Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorTrustee, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Private Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in the Class ___B-4 Certificates is to be made without registration under the 1933 Act (other than in connection with the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor), Class ___then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder's prospective transferee (which in the case of the Book-Entry Certificates, the Certificateholder and the Certificateholder's prospective transferee shall be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Private Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Residual Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("PLAN ASSETS"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee and the Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Servicer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with (i) the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor, (ii) the transfer of any such Class C, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any such Class C, Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that it is not purchasing with Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Certificate Registrar or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner shall require be treated as the prospective transferee beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any Class ___such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, Class ___the Servicer, Class ___the Trustee and the Trust Fund from and against any and all liabilities, Class ___claims, Class ___ costs or Class ___ Certificate to certify, and each prospective transferee expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who has or who acquires any Class ___, Class ___, Class ___, Class ___ or Class ___ Ownership Interest in a Residual Certificate shall be deemed to have represented by its the acceptance or acquisition of such Certificate, that it is neither Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to Permitted Transferee and shall promptly notify the contrary contained herein, prior to registration Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "TRANSFER AFFIDAVIT AND AGREEMENT"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, by net of the commissions (which may include commissions payable to the Certificate Registrar or its acceptance thereofAffiliates), expenses and taxes due, if any, shall be deemed for all purposes remitted by the Certificate Registrar to have consented such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person will such provisions shall not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions shall not cause any Trust Fund REMIC to cease to qualify as a REMIC and shall not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.exch
Appears in 1 contract
Sources: Pooling and Servicing Agreement (GE-WMC Mortgage Securities, L.L.C.)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trust Administrator shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trust Administrator in accordance with the provisions of Section 8.11 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trust Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby Trust Administrator will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeServicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer Trustee and, if not the Certificate Registrar, the Trust Administrator shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Residual Certificate is to be made without registration or qualification qualification, the Trust Administrator and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification under the 1933 Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the ServicerTrustee, the Trustee Trust Administrator or the Certificate Registrar Servicer in their respective capacities its capacity as such), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Certificate Registrar, the Trustee or the Certificate Registrar Trust Administrator is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Trust Administrator, the Depositor, the Certificate Registrar Registrar, the Servicer and the Depositor Certificate Insurer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Residual Certificate or any interest therein shall be transferred to made unless the prospective transferee of any Residual Certificate certifies that it is not (Ai) any an employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns ▇▇ plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code (each, a "Plan") or (Bii) any a Person who is directly or indirectly purchasing any such Class the Residual Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of of, a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result .
(i) Each Person who has or who acquires any Ownership Interest in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Residual Certificate shall be deemed to have represented by its the acceptance or acquisition of such Certificate, that it is neither Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trust Administrator or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to Permitted Transferee and shall promptly notify the contrary contained herein, prior to registration Trust Administrator of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trust Administrator shall require delivery to it, and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of, an affidavit agreement (a "Transfer Affidavit and Agreement" attached hereto as Exhibit F-2) from the proposed transferee substantially Transferee, in form and substance satisfactory to the Trust Administrator, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trust Administrator who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement (in the form attached hereto as Exhibit F-1 hereto, F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the effect Trust Administrator stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trust Administrator written notice that it will become insolvent is a "pass through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trust Administrator will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit Agreement and all of such other documents as shall have been reasonably required by the Trust Administrator as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trust Administrator shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(iii) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of registration of such Transfer of such Residual Certificate. Neither the purported transfer. The Trustee nor the Trust Administrator shall be under no any liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in this clause (iii) shall be invalid, illegal or unenforceable, then the Trust Administrator shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trust Administrator on such terms as the Trust Administrator may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trust Administrator. Such purchaser may be the Trust Administrator or any Affiliate of the Trust Administrator. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trust Administrator or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trust Administrator to such purported Transferee. The terms and conditions of any sale under this clause (iii) shall be deemed for all purposes determined in the sole discretion of the Trust Administrator, and the Trustee and the Trust Administrator shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trust Administrator shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trust Administrator.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trust Administrator at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate such provisions will not cause such Rating Agency to a Disqualified Organization downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Administrator, to the effect that such modification of, addition to or any other Person elimination of such provisions will not cause the REMIC Trust Fund to cease to qualify as a REMIC or and will not cause the imposition REMIC Trust to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or (y) a Person other than the prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office agency of the Certificate RegistrarTrust Administrator maintained for such purpose pursuant to Section 8.11, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrust Administrator maintained for such purpose pursuant to Section 8.11. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent Trust Administrator shall execute - 120 - 127 and authenticate and cause the Trust Administrator or the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrust Administrator ) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trust Administrator or the Certificate Registrar Registrar, as the case may be, duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hg) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee Trust Administrator or Certificate Registrar, as the Certificate Registrar case may be, may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ih) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by Trust Administrator or the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates , as the case may be, in accordance with its standard customary procedures.
(i) The Trust Administrator will cause the Certificate Registrar (unless the Trust Administrator is acting as Certificate Registrar) to provide notice to the Trust Administrator of each transfer of a Certificate and to provide the Trust Administrator with an updated copy of the Certificate Register on the first Business Day in January and June of each year, commencing June 1998.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___B-4 Certificate, Class ___, B-5 Certificate or Class ___, Class ___, Class ___ and Class ___ B-6 Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class B-4 Certificate, Class B-5 Certificate or Class B-6 Certificate is to be made without registration or qualification qualification, the Trustee and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall each require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___B-4 Certificate, Class ___, B-5 Certificate or Class ___, Class ___, Class ___ and Class ___ B-6 Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class B-4 Certificate, Class B-5 Certificate or Class B-6 Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Subordinate or Residual Certificates except for the Class ___, Class ___, Class ___, Class ___, or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with "plan assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated under 29 C.F.R. ss. 2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Depositor, the Certificate Registrar Trustee and the Master Servicer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee and the Master Servicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the Trustee or the Trust Fund. In lieu of such Opinion of Counsel, a Plan, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with Plan Assets of a Plan may provide a certification in the form of Exhibit G to this Agreement, which the Trustee may rely upon without further inquiry or investigation. Neither an Opinion of Counsel nor a certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require the prospective transferee have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets of any Class ___Plan) and the Trustee shall be entitled to conclusively rely upon a representation (which, Class ___upon the request of the Trustee, Class ___, Class ___, Class ___ shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor.
(i) Each Person who has or Class ___ Certificate to certify, and each prospective transferee of who acquires any Class ___, Class ___, Class ___, Class ___ or Class ___ Ownership Interest in a Residual Certificate shall be deemed to have represented by its the acceptance or acquisition of such Certificate, that it is neither Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to Permitted Transferee and shall promptly notify the contrary contained herein, prior to registration Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2, from the proposed Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a transferor affidavit (a "Transfer Affidavit"), in the form attached hereto as Exhibit F-2, to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause either REMIC I or REMIC II to cease to qualify as a REMIC and will not cause (x) either REMIC I or cause REMIC II, as the imposition case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or (y) a Person other than the prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hg) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ih) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard customary procedures.
(i) The Trustee will cause the Certificate Registrar (unless the Trustee is acting as Certificate Registrar) to provide notice to the Trustee of each transfer of a Certificate and to provide the Trustee with an updated copy of the Certificate Register on the first Business Day in January and June of each year, commencing June 1997.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Inc Asst Back Cert Se 1997-Lb2)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-10 Certificate, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class M-10 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___M-10 Certificates, the Class ___CE Certificates, the Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in the Class ___M-10 Certificates is to be made without registration under the 1933 Act (other than in connection with the initial issuance thereof or a transfer thereof by the Depositor or one of its Affiliates), Class ___then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder's prospective transferee (which in the case of the Book-Entry Certificates, the 126 Certificateholder and the Certificateholder's prospective transferee will be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Class M-10 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___M-10 Certificate, Class ___CE Certificate, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless either (i) the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee, the NIMS Insurer, the Certificate Insurer and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Certificate Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated by shall not be an expense of the preceding sentenceDepositor, the Master Servicer, the NIMS Insurer, the Certificate Registrar shall require Insurer, the Trustee or the Trust Fund or (ii) solely in the case of the Class M-10 Certificates, the Trustee receives a certification from the prospective transferee in the form of Exhibit G that the Class M-10 Certificates have been offered in an underwriting or placement within the meaning of Prohibited Transaction Exemption 2002-41, as amended ("PTE 2002-41"). Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any Class ___such Certificate by the Depositor to an affiliate of the Depositor (in which case, Class ___the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, Class ___upon the request of the Trustee, Class ___, Class ___ shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of the Mezzanine Certificates or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) for Mezzanine Certificates other than the Class M-10 Certificates (unless the Trustee has received the certification referred to in clause (ii) of the preceding paragraph in which case it shall apply to the Class M-10 Certificates) it has acquired and is holding such Mezzanine Certificates (other than the Class M-10 Certificates) in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' 127 Exemption, including that the Certificates (other than the Class M-10 Certificates) must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by ▇▇▇▇▇'▇, Fitch or S&P or (iii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer, the Certificate Insurer, and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed 128 Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice that it is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)
(A) such transferee immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or is not holding an Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a sell such Residual Certificate to a Disqualified Organization purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any other Person will not cause Affiliate of the Trust Fund to cease to qualify as a REMIC or cause Certificate Registrar. The proceeds of such sale, net of the imposition of a tax upon the Trust Fund.
commissions (e) Subject which may include commissions payable to the preceding subsectionsCertificate Registrar or its Affiliates), upon surrender for registration of transfer expenses and taxes due, if any, shall be remitted by 129 the Certificate Registrar to such purported Transferee. The terms and conditions of any Certificate at sale under this clause (iii)(B) shall be determined in the office sole discretion of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, not be liable to any Person having an Ownership Interest in the name a Residual Certificate as a result of the designated transferee or transferees, one or more new Certificates its exercise of the same Class of a like aggregate Percentage Interestsuch discretion.
(fiv) At The Trustee shall make available to the option Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any Holderregulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its Certificates record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be exchanged for other Certificates of authorized denominations of accepted by the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receiveTrustee.
(gv) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarThe provisions of this Section 5.02(d) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory set forth prior to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.this subs
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trust Administrator shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trust Administrator in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trust Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby Trust Administrator will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, each Master Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trust Administrator shall at any time not be the Certificate Registrar, the Trust Administrator shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___X Certificate, Class ___B-IO Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class X Certificate, Class B-IO Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a Definitive Certificatetrust, then the depositor of which is an affiliate of the Seller), the Trust Administrator and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: either (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, and F-1 or (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, any Master Servicer, the Trustee or Trust Administrator, the Certificate Registrar in their respective capacities as suchor the Trust Fund), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee Certificate Registrar, the Trust Administrator or the Certificate Registrar Trustee is obligated to register or qualify the Class ___X Certificates, Class ___B-IO Certificates, the Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class X Certificate, a Class B-IO Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Trust Administrator the Depositor, the Certificate Registrar and the Depositor each Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the a Class ___B-IO Certificate, Class ___X Certificate, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with "Plan Assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated at 29 C.F.R.ss.2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Depositor, the Certificate Registrar Trustee, the Trust Administrator and each Master Servicer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee, the Trust Administrator and each Master Servicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, any Master Servicer, the Trustee, the Trust Administrator or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code) in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Depositor, any Master Servicer, the Trustee, the Trust Administrator or the Trust Fund. In the absence case of its having received the certification and Class B Certificates, in lieu of such Opinion of Counsel contemplated by Counsel, any prospective Transferee of such Certificates may provide a certification (which in the preceding sentencecase of the Class B Certificates sold in book-entry form, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall Transferee will be deemed to have represented by its acquisition such certification) in the form of such CertificateExhibit G to this Agreement (or other form acceptable to the Depositor, that it is neither (A) a Plan the Trustee, the Trust Administrator and each Master Servicer), which the Trust Administrator may rely upon without further inquiry or investigation. Neither an Opinion of Counsel nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or certification will be required in connection with assets of a Plan. - 119 - 126
(d) No the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trust Administrator shall be entitled to conclusively rely upon a representation (which, upon the request of the Trust Administrator, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Class B Certificate, Class X Certificate, Class B-IO Certificate, Class P Certificate or Residual Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, any Master Servicer, the Trustee, the Certificate Registrar, the Trust Administrator and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trust Administrator its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trust Administrator of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trust Administrator shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trust Administrator who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement in the form attached hereto as Exhibit F-2 ) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Trust Administrator stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trust Administrator written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trust Administrator will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trust Administrator as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trust Administrator shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Trust Administrator shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trust Administrator shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trust Administrator on such terms as the Trust Administrator may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trust Administrator. Such purchaser may be the Trust Administrator itself or any Affiliate of the Trust Administrator. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trust Administrator or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trust Administrator to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trust Administrator, and the Trust Administrator shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trust Administrator shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trust Administrator.
(v) The provisions of this Section 5.02 5.02(d) set forth prior to this subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trust Administrator, the Trustee and to any amendment of this Agreement deemed necessary by counsel the Certificate Registrar at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Administrator, the Trustee and the Certificate Registrar, to the effect that such modification of, addition to or elimination of such provisions will not cause any of REMIC created hereunder to cease to qualify as a REMIC and will not cause any REMIC created hereunder, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrust Administrator maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent Trust Administrator on behalf of the Trustee shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrust Administrator maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent Trust Administrator on behalf of the Trustee shall execute - 120 - 127 and authenticate and the Certificate Registrar shall authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Trust Administrator
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Credit Suisse First Boston Mortgage Securities Corp)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Securities Administrator shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Securities Administrator in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Securities Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby Securities Administrator will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, the Seller, the Servicer, the Securities Administrator and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Securities Administrator shall at any time not be the Certificate Registrar, the Securities Administrator shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Non-Offered Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a Definitive Certificatetrust, then the depositor of which is an affiliate of the Seller), the Trustee, the Securities Administrator and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: either (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, and F-1 or (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorSeller, the Trustee, the Servicer, the Trustee Certificate Registrar, the Securities Administrator or the Certificate Registrar in their respective capacities as suchTrust Fund), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee Seller, the Certificate Registrar, the Securities Administrator or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Private Certificate shall, and does hereby agree to, indemnify the Trustee, the Seller, the Depositor, the Certificate Registrar Registrar, the Securities Administrator and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(ci) None No transfer of an ERISA-Restricted Certificate shall be made unless the Securities Administrator shall have received in the form attached hereto as Exhibit F-2 or Exhibit G, as applicable, either (i) a certification letter from the transferee of such Certificate, acceptable to and in form and substance satisfactory to the Securities Administrator and the Trustee, to the effect that such transferee is not a Plan or a person using the assets of any such Plan, which representation letter shall not be an expense of the Securities Administrator, the Trustee or the Trust Fund, (ii) if the purchaser is an insurance company and the Certificate has been the subject of an ERISA-Qualifying Underwriting, a representation that the purchaser is an insurance company which is purchasing such Certificates except with funds contained in an “insurance company general account” (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in the case of any such Certificate presented for registration in the Class ___, Class ___, Class ___, Class ___name of a Plan or a person acting on behalf of any such Plan, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangementusing such Plan’s assets, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish satisfactory to the satisfaction Securities Administrator and the Trustee to the effect that the purchase or holding of the such Certificate Registrar that such transfer will not result in a violation of prohibited transactions under Section 406 of ERISA or and/or Section 4975 of the Code and will not subject the Depositor, the Seller, the Trustee, the Securities Administrator or cause the Servicer to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of such parties or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the CodeTrust Fund. In the absence event the representations referred to in the preceding sentence are not furnished, such representations shall be deemed to have been made to the Securities Administrator by the transferee’s acceptance of its having received an ERISA-Restricted Certificate, or by any beneficial owner who purchases an interest in such Certificate in book-entry form. In the certification event that a representation is violated, or any attempt to transfer an ERISA-Restricted Certificate to a Plan, or a person using a Plan’s assets is attempted without the delivery to the Trustee and the Securities Administrator of the opinion of counsel described above, the attempted transfer or acquisition of such Certificate shall be void and of no effect. Neither an Opinion of Counsel contemplated nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar shall require the prospective transferee of Depositor or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate Affiliate thereof shall be deemed to have represented by its acquisition of that such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee affiliate is not a Disqualified Organization Plan or an agent a Person investing Plan Assets) and the Securities Administrator and the Trustee shall be entitled to conclusively rely upon a representation (including which, upon the request of the Securities Administrator, shall be a broker, nominee or middlemanwritten representation) from the Depositor of a Disqualified Organization, (B) the status of such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition an affiliate of the Residual Certificate is or will be to impede the assessment or collection of any tax, and Depositor.
(ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent [Reserved]
(including a broker, nominee or middlemaniii) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be or any interest therein is acquired or held in violation of the provisions of this Section 5.02(d5.02(c)(i), then the prior Holder next preceding permitted beneficial owner will be treated as the beneficial owner of the Residual that Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof beneficial owner. Any purported beneficial owner whose acquisition or taking holding of any other action with respect to such purported Holder under Certificate or interest therein was effected in violation of the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsectionsparagraph shall indemnify and hold harmless the Depositor, upon surrender for registration of transfer of any Certificate at the office of Servicer, the Seller, the Trustee, the Certificate Registrar, the Trustee or Underwriters, the Authenticating Agent shall execute and authenticate Securities Administrator and the Certificate Registrar shall deliverTrust Fund from and against any and all liabilities, in the name claims, costs or expenses incurred by those parties as a result of the designated transferee that acquisition or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interestholding.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (J.P. Morgan Mortgage Acquisition Corp. 2005-Opt1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-7 Certificate, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class M-7 Certificates, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___M-7 Certificates, the Class ___CE Certificates, the Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in the Class ___M-7 Certificates is to be made without registration under the 1933 Act (other than in connection with the initial issuance thereof or a transfer thereof by the Depositor or one of its Affiliates), Class ___then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder's prospective transferee (which in the case of the Book-Entry Certificates, the Certificateholder and 125 the Certificateholder's prospective transferee will be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Class M-7 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___P Certificate, Residual Certificate or Class ___M-7 Certificate which is not issued in an underwritten offering or placement which qualifies under Prohibited Transaction Exemption 2002-41, Class ___, as amended or any interest therein in any such Certificates shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless either (i) the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee, the NIMS Insurer, the Trust Fund and the Master Servicer and on which establish they may rely, to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund or (ii) solely in the case of the Class M-7 Certificates, the Trustee receives a certification from the transferee in the form of Exhibit G that the Class M-7 Certificates have been offered in an underwriting or placement within the meaning of Prohibited Transaction Exemption 2002-41, as amended. Neither an Opinion of Counsel nor any certification shall be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Once a certification is given under subsection (ii) above, no subsequent transferee shall be required to provide such a certification on transfer of a Class M-7 Certificate. Each beneficial owner of a Mezzanine Certificate Registrar shall require the prospective transferee of (other than a Class M-7 Certificate) or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificate (other than a Class M-7 Certificate) in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, 126 including that the Mezzanine Certificates (other than the Class M-7 Certificates) must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P or (iii) (▇) ▇t is an insurance company, (2) the source of funds used to acquire or hold the Certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. Each beneficial owner of a Class M-7 Certificate or any interest therein which occurs on or following the time a certification has been made under subsection (c)(ii) above, shall be deemed to have represented, by virtue of its acquisition or holding of the Certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets or (ii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding two paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding two paragraphs shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a sell such Residual Certificate to a Disqualified Organization purchaser selected by the Certificate Registrar on such 128 terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any other Person will not cause Affiliate of the Trust Fund to cease to qualify as a REMIC or cause Certificate Registrar. The proceeds of such sale, net of the imposition of a tax upon the Trust Fund.
commissions (e) Subject which may include commissions payable to the preceding subsectionsCertificate Registrar or its Affiliates), upon surrender for registration of transfer expenses and taxes due, if any, shall be remitted by the Certificate Registrar to such purported Transferee. The terms and conditions of any Certificate at sale under this clause (iii)(B) shall be determined in the office sole discretion of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, not be liable to any Person having an Ownership Interest in the name a Residual Certificate as a result of the designated transferee or transferees, one or more new Certificates its exercise of the same Class of a like aggregate Percentage Interestsuch discretion.
(fiv) At The Trustee shall make available to the option of Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any Holder, its Certificates may be exchanged for other Certificates of authorized denominations tax imposed (A) as a result of the same Class Transfer of an Ownership Interest in a like aggregate Percentage Interest, upon surrender of the Certificates Residual Certificate to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange Person who is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Disqualified Organization
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Argent Securities Inc Asset Back Pass THR Certs Ser 2004-W6)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Master Servicer shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Master Servicer in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Master Servicer shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby Master Servicer will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer, the Seller, the Servicer, the Trustee and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The If the Master Servicer shall at any time not be the Certificate Registrar, the Master Servicer shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Non-Offered Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a Definitive Certificatetrust, then the depositor of which is an affiliate of the Seller), the Master Servicer and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: either (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, and F-1 or (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorSeller, the Trustee, FSA, the Servicer, the Trustee or Master Servicer, the Certificate Registrar in their respective capacities as suchor the Trust Fund), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee or Seller, the Certificate Registrar or the Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Private Certificate shall, and does hereby agree to, indemnify the Trustee, FSA, the Seller, the Depositor, the Certificate Registrar Registrar, the Master Servicer and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(ci) None No transfer of an ERISA-Restricted Certificate shall be made unless the Master Servicer shall have received in the form attached hereto as Exhibit F-2 or Exhibit G, as applicable, either (i) a certification letter from the transferee of such Certificate, acceptable to and in form and substance satisfactory to the Master Servicer, to the effect that such transferee is not a Plan or a person using the assets of any such Plan, which representation letter shall not be an expense of the Master Servicer or the Trust Fund, (ii) if the purchaser is an insurance company and the Certificate has been the subject of an ERISA-Qualifying Underwriting, a representation that the purchaser is an insurance company which is purchasing such Certificates except with funds contained in an “insurance company general account” (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in the case of any such Certificate presented for registration in the Class ___, Class ___, Class ___, Class ___name of a Plan or a person acting on behalf of any such Plan, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangementusing such Plan’s assets, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish satisfactory to the satisfaction Master Servicer to the effect that the purchase or holding of the such Certificate Registrar that such transfer will not result in a violation of prohibited transactions under Section 406 of ERISA or and/or Section 4975 of the Code or cause and will not subject the Depositor, the Seller, the Trustee, FSA, the Servicer or the Trustee Master Servicer to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be deemed a fiduciary an expense of such Plan parties or result in the imposition of an excise tax under Section 4975 of the CodeTrust Fund. In the absence event the representations referred to in the preceding sentence are not furnished, such representations shall be deemed to have been made to the Master Servicer by the transferee’s acceptance of its having received an ERISA-Restricted Certificate, or by any beneficial owner who purchases an interest in such Certificate in book-entry form. In the certification event that a representation is violated, or any attempt to transfer an ERISA-Restricted Certificate to a Plan, or a person using a Plan’s assets is attempted without the delivery to the Master Servicer of the opinion of counsel described above, the attempted transfer or acquisition of such Certificate shall be void and of no effect. Neither an Opinion of Counsel contemplated nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar shall require the prospective transferee of Depositor or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate affiliate thereof shall be deemed to have represented by its acquisition that such affiliate is not a Plan or a Person investing Plan Assets) and the Master Servicer shall be entitled to conclusively rely upon a representation (which, upon the request of the Master Servicer, shall be a written representation) from the Depositor of the status of such Certificatetransferee as an affiliate of the Depositor.
(ii) [Reserved].
(iii) If any Certificate or any interest therein is acquired or held in violation of the provisions of Section 5.02(c)(i), the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Servicer, the Seller, the Trustee, FSA, the Master Servicer, the Certificate Registrar, the Underwriter and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Master Servicer or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Master Servicer of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Master Servicer shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a “Transfer Affidavit and Agreement”), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Master Servicer who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement in the form attached hereto as Exhibit F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the effect Master Servicer stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Master Servicer written notice that it will become insolvent is a “pass-through interest holder” within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a “pass-through interest holder.”
(ii) The Master Servicer will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Master Servicer as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Master Servicer shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Master Servicer shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Master Servicer shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Master Servicer on such terms as the Master Servicer may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Master Servicer. Such purchaser may be the Master Servicer itself or any Affiliate of the Master Servicer. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Master Servicer or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Master Servicer to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Master Servicer, and the Master Servicer shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Master Servicer shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Such information shall be provided by the Master Servicer upon receipt of reasonable compensation.
(v) The provisions of this Section 5.02 5.02(d) set forth prior to this subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Master Servicer and to any amendment of this Agreement deemed necessary by counsel the Certificate Registrar at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Master Servicer and the Certificate Registrar, to the effect that such modification of, addition to or elimination of such provisions will not cause any REMIC created hereunder to cease to qualify as a REMIC and will not cause any REMIC created hereunder, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarMaster Servicer maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent Master Servicer shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarMaster Servicer maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent Master Servicer shall execute - 120 - 127 and authenticate and the Certificate Registrar shall authenticate and deliver the Certificates which that the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarMaster Servicer) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.inst
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset Backed Pass-Through Certificates, Series 2004-He6)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there shall be maintained at the office of the Certificate Registrar a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar may prescribe, the Certificate Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (and hereby agrees to act) as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___F, Class ___G, Class ___H, Class ___NR, Class ___ R-I, Class R-II and Class ___ R-III Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If such a transfer is to be made without registration or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D D-1 hereto, (ii) if such transfer is purportedly being made in reliance upon Regulation S under the 1933 Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D-2 hereto, (iii) if such transfer is purportedly being made in reliance upon Rule 144 under the 1933 Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D-3 hereto, and (iiiv) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Master Servicer, the Trustee or the Certificate Registrar in their respective capacities as such), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee or the Certificate Registrar is obligated to register or qualify the Class ___F, Class ___G, Class ___H, Class ___NR, Class ___ R-I, Class R-II and Class ___ R-III Certificates under the 1933 Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___F, Class ___G, Class ___H, Class ___NR, Class ___ R-I, Class R-II and Class ___ R-III Certificate without registration or qualification. Any Class ___F, Class ___G, Class ___H, Class ___NR, Class ___ R-I, Class R-II or Class ___ R-III Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate Registrar and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None of the Certificates except for the Class ___A1, Class ___A2, Class ___, A3 or Class ___, or any interest therein X Certificates shall be transferred to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, KeogKeogh plans and collective investme▇▇ ▇▇▇ns and collective investment funds nds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Master Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___F, Class ___G, Class ___H, Class ___NR, Class ___ R-I, Class R-II or Class ___ R-III Certificate to certify, and each prospective transferee of any Class ___B, Class ___C, Class ___, Class ___ D or Class ___ E Certificate shall be deemed to have represented by its acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126.
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. United States Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Non-United States Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. United States Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d8.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, discovery that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d8.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d8.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d8.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 8.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled cancelled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled cancelled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Morgan J P Commercial Mortgage Finance Corp)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act. 120
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P o▇ (▇▇▇) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such 121 Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice that it is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)
(A) such transferee immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or is not holding an Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall 122 have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.suc
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset Backed Ser 2003-10)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall be maintained keep at the office of or agency to be maintained in accordance with Section 12.02 a "Certificate Register" in which the Certificate Registrar a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (appoints itself to be the "Certificate Registrar" and hereby agrees to act) as Certificate Registrar transfer agent for the purpose of registering Certificates and transfers and exchanges of Certificates as herein providedprovided herein. Promptly after the Closing Date the Trustee will give the Master Servicer, in writing, the names of all Private Certificateholders and the Trustee will give the Master Servicer, prompt written notice of any change in the Private Certificateholders. The Certificate Registrar may appoint, by a Trustee will give prompt written instrument delivered notice to Certificateholders and the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved Master Servicer of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth change in the Certificate RegisterRegistrar.
(b) No transfer transfer, sale, pledge or other disposition of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Private Certificate or any interest therein (including any transfer by a Certificateholder of any interest in a Book-Entry Certificate) shall be made unless that such transfer is made pursuant to an effective registration statement under the Act, Securities Act and effective registration or qualification under applicable state securities laws, laws or is made in a transaction which that does not require such registration or qualification. If Until such time as the Private Certificates shall be registered pursuant to a registration statement filed under the Securities Act and the Private Certificates shall bear a legend to the effect set forth in the preceding sentence. In the event that registration of a transfer is to be made without registration of a Private Certificate or qualification and any interest therein (including any transfer by a Certificateholder of any interest in a Book-Entry Certificate) is to be made in connection reliance upon the exemption from registration under the Securities Act contained in Rule 144A, such transfer shall be made only to a Qualified Institutional Buyer which is aware that the transfer of such Certificate is being made in reliance on Rule 144A and is acquiring such Certificate for its own account or for the account of a Qualified Institutional Buyer, as the case may be, and such transferee shall be deemed to have represented that the foregoing is true and correct and that such transferee understands that such Certificates have not been and will not be registered under the Securities Act and may not be reoffered, resold, pledged or otherwise transferred except (A) to a person who such transferee reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A and (B) in accordance with all applicable securities laws of the issuance or states of the United States. In the event that registration of a transfer of a Definitive Private Certificate or any interest therein (including any transfer by a Certificateholder of any interest in a Book-Entry Certificate, then ) is to be made in reliance upon an exemption from registration under the Certificate Registrar shall require, Securities Act (other than the exemption from registration contained in Rule 144A) and applicable state securities laws in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Securities Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D hereto, and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, the transferee shall deliver to the Trustee and the Master Servicer an Opinion of Counsel satisfactory to the Certificate Registrar to the effect that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be pursuant to an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as such), (B) a certificate exemption from the Certificateholder Securities Act (other than the exemption from registration contained in Section 3(a)(2) thereof). The Holder of a Private Certificate desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee or the Certificate Registrar is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificates under the Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ such Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate Registrar Depositor and the Depositor Master Servicer against any liability that may result if the such transfer is not so exempt or is not made in accordance with such federal and state laws. Neither the Master Servicer, the Depositor, the Certificate Registrar, the Paying Agent, the Seller nor the Trustee is obligated to register the Private Certificates under the Securities Act or under any state securities laws. Prospective transferors of Private Certificates (or Book-Entry Certificates), and prospective transferees of Certificates (or Book-Entry Certificates) that are Qualified Institutional Buyers buying Certificates in reliance upon Rule 144A may request from the Master Servicer information regarding the Trust and the Trust assets. Within five (5) Business Days of any such request, the Master Servicer shall deliver to any such prospective transferor or transferee (i) a copy of each Monthly Report delivered to Certificateholders since the first Distribution Date pursuant to Section 6.05, (ii) information relating to the Sellers, the Master Servicer, the Mortgage Loans and this Agreement substantially in the form of the Base Prospectus and the Prospectus Supplement and (iii) such other information as may be required to comply with Rule 144A and any interpretation thereof.
(c) None As a condition to the registration of any Transfer of any Private Certificate, the Certificates except for prospective transferee shall deliver to the Class ___, Class ___, Class ___, Class ___, or any interest therein shall be transferred to Certificate Registrar and the Trustee a certificate substantially in the form attached hereto as Exhibit I (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "PlanPrivate Certificate Transferee Letter") or shall supply other evidence to the same effect satisfactory to the Master Servicer.
(Bd) any Each Person who is directly has or indirectly purchasing who acquires any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result Ownership Interest in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ R Certificate shall be deemed to have represented by its the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Master Servicer as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (vi) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale, and the rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Master Servicer of any change or impending change in its status as a Permitted Transferee.
(ii) No Ownership Interest in a Class R Certificate may be Transferred without the express written consent of the Master Servicer, and the Trustee shall not register the Transfer of any Class R Certificate without such consent with respect to any proposed Transfer. In connection with any proposed Transfer of any Ownership Interest in a Class R Certificate, that it is neither the Master Servicer shall, as a condition to such consent, require delivery to it, form and substance satisfactory to it, and the proposed Transferee shall deliver to the Master Servicer and the Trustee, the following:
(A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from (a "Transfer Affidavit") of the proposed transferee substantially Transferee, in the form attached as Exhibit F-1 H hereto, that it is not a "disqualified organization" within the meaning of Section 860E(e)(5) of the Code, and that the proposed Transferee is not acquiring its Ownership Interest in the Class R Certificate as a nominee, trustee or agent for, or for the benefit of, any Person who is not a Permitted Transferee; and
(B) an express agreement by the proposed Transferee to be bound by and to abide by the effect thatprovisions of this Section and the restrictions noted on the face of the Class R Certificates.
(iii) Notwithstanding the delivery of a Transfer Affidavit by a proposed Transferee under clause (ii) above, among other thingsif the Master Servicer has actual knowledge that the Transfer Affidavit is false, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(iv) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (A) to require a Transfer Affidavit from any other Person to whom such transferee is not Person attempts to Transfer its Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, Class R Certificate and (B) not to Transfer its Ownership Interest in a Class R Certificate or to cause the Transfer of an Ownership Interest in a Class R Certificate to any other Person if it has actual knowledge that such transferee Transfer Affidavit is not a Non- U.S. Person, false.
(Cv) such transferee has no present knowledge Any attempted or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection purported Transfer of any tax, and (ii) Ownership Interest in a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Class R Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then shall be absolutely null and void and shall vest no rights in the prior purported Transferee. If any purported Transferee shall become a Holder of a Class R Certificate in violation of the Residual Certificate purportedly transferred shallprovisions of this Section, then, upon discovery, discovery by or due notification of the Trustee that the transfer registration of Transfer of such Residual Class R Certificate was not in fact permitted by this Section 5.02(d)Section, the last preceding Permitted Transferee shall be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Class R Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this AgreementAgreement so long as the Transfer was registered with the express prior written consent of the Master Servicer. The prior Holder Trustee shall be entitled but not obligated to recover from any purported Holder of a Residual Class R Certificate that was in fact not a permitted transferee under this Section 5.02(d) Permitted Transferee at the time it became a Holder or, at such subsequent time as it became other than a Permitted Transferee, all payments made on such Residual Class R Certificate at and after either such time. Any such payments so recovered by the Trustee shall be paid and delivered by the Trustee to the last preceding Permitted Transferee of such Certificate. The .
(vi) If any purported Transferee shall become a Holder of Residual Certificatesa Class R Certificate in violation of the restrictions in this Section, by its acceptance thereof, then the Master Servicer shall be deemed for all purposes to have consented the right without notice to the provisions Holder or any prior Holder of this Section 5.02 and such Class R Certificate, to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual sell such Class R Certificate to a Disqualified Organization purchaser selected by the Master Servicer on such terms as the Master Servicer may choose. Such purchaser may be the Master Servicer itself or any Affiliate of the Master Servicer. The proceeds of such sale, net of commissions (which may include commissions payable to the Master Servicer or its Affiliates), expenses and taxes due, if any, will be remitted by the Master Servicer to the last preceding Permitted Transferee of such Class R Certificate, except that in the event that the Master Servicer determines that the Holder or any prior Holder of such Class R Certificate may be liable for any amount due under this Section or any other provision of this Agreement, the Master Servicer may withhold a corresponding amount from such remittance as security for such claim. The terms and conditions of any sale under this clause (vi) shall be determined in the sole discretion of the Master Servicer, and it shall not be liable to any Person having an Ownership Interest in a Class R Certificate as a result of its exercise of such discretion. Upon notice to the Master Servicer that any legal or beneficial interest in any portion of a Class R Certificate has been transferred, either directly or indirectly to any person that is not a Permitted Transferee or an agent (including a broker, nominee, or middleman) of such Transferee in contravention of the foregoing restrictions, the Master Servicer agrees to furnish to the Internal Revenue Service and to the transferor of such Class R Certificate or such agent such information necessary to the application of Section 860E(e) of the Code as may be required by the Code or any regulations or administrative pronouncements thereunder, including but not limited to the present value of the total anticipated excess inclusions with respect to such Class R Certificate (or portion thereof) for periods after such transfer. At the election of the Master Servicer, the Master Servicer may charge a reasonable fee for computing and furnishing such information to the transferor or to such agent referred to above; however, the Master Servicer shall in no event be excused from furnishing such information to the Internal Revenue Service. The foregoing restrictions on transfer contained in this Section 9.02(d) shall cease to apply to Transfers occurring on or after the date on which there shall have been delivered to the Trustee, the Depositor and the Master Servicer, in form and substance satisfactory to the Master Servicer, an Opinion of Counsel that eliminating such restrictions will not cause any of the Trust Fund REMICs to cease fail to qualify as a REMIC or cause at any time while the imposition of a tax upon the Trust FundCertificates are outstanding.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holdera Certificateholder, its Certificates may be exchanged for other Certificates of the same Class of authorized denominations of the same Class of a like aggregate Percentage Interestdenomination, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrarsuch office. Whenever any Certificates are so surrendered for exchange exchange, the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate deliver on behalf of the Trust, and the Certificate Registrar Trustee shall deliver authenticate, the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or shall be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his or her attorney duly authorized in writing.
(hf) No service charge Except as provided in paragraph (g) below the Book-Entry Certificates shall at all times remain registered in the name of the Depository or its nominee and at all times: (i) registration of the Offered Certificates may not be transferred by the Trustee except to another Depository; (ii) the Depository shall maintain book-entry records with respect to the Certificateholders and with respect to ownership and transfers of such Offered Certificates; (iii) ownership and transfers of registration of the Offered Certificates on the books of the Depository shall be imposed governed by applicable rules established by the Depository; (iv) the Depository may collect its usual and customary fees, charges and expenses from its Depository Participants; (v) the Trustee shall deal with the Depository, Depository Participants and indirect participating firms as representatives of the Certificateholders of the Offered Certificates for any purposes of exercising the rights of Holders under this Agreement, and requests and directions for and votes of such representatives shall not be deemed to be inconsistent if they are made with respect to different Certificateholders; and (vi) the Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its Depository Participants and furnished by the Depository Participants with respect to indirect participating firms and persons shown on the books of such indirect participating firms as direct or indirect Certificateholders. All transfers by Certificateholders of Book-Entry Certificates shall be made in accordance with the procedures established by the Depository Participant or brokerage firm representing such Certificateholder. Each Depository Participant shall only transfer Book-Entry Certificates of Certificateholders it represents or exchange of Certificatesbrokerage firms for which it acts as agent in accordance with the Depository's normal procedures.
(g) If (x)(i) the Depositor or the Depository advises the Trustee in writing that the Depository is no longer willing or able properly to discharge its responsibilities as Depository, but and (ii) the Trustee or the Certificate Registrar may require payment Depositor is unable to locate a qualified successor, or (y) the Depositor at its sole option advises the Trustee in writing that it elects to terminate the book-entry system through the Depository, the Trustee shall notify all Certificateholders, through the Depository, of a sum sufficient the occurrence of any such event and of the availability of definitive, fully registered Offered Certificates (the "Definitive Certificates") to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by Certificateholders requesting the Certificate Registrar and a certificate of such cancellation shall be delivered same. Upon surrender to the Trustee of the Offered Certificates by the Certificate RegistrarDepository, accompanied by registration instructions from the Depository for registration, the Trustee shall issue the Definitive Certificates. The Certificate Registrar Neither the Depositor nor the Trustee shall hold be liable for any delay in delivery of such canceled instructions and may conclusively rely on, and shall be protected in relying on, such instructions. Upon the issuance of Definitive Certificates in accordance with its standard procedures.all ref
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Cit Home Equity Loan Trust 2003-1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-10 Certificate, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class M-10 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, (ii) the transfer of any such Class CE or Class P Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Class CE or Class P Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___M-10 Certificates, the Class ___CE Certificates, the Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in 141 the Class ___M-10 Certificates is to be made without registration under the 1933 Act (other than in connection with (i) the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, (ii) the transfer of any such Class ___, Class ___, Class ___, Class ___ CE or Class ___ P Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any such Class CE or Class P Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder's prospective transferee (which in the case of the Book-Entry Certificates, the Certificateholder and the Certificateholder's prospective transferee shall be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Class M-10 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee, the NIMS Insurer, the Guarantor and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Guarantor, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Guarantor, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with (i) the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor, (ii) the Certificate Registrar shall require the prospective transferee transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ such Certificate to certify, and each prospective transferee the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any Class ___, Class ___, Class ___, Class ___ such Certificate from the issuer under the Indenture or Class ___ Certificate the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case such transferee shall be deemed to have represented by its acquisition of such Certificate, that it is neither not purchasing with Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (Awhich, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of the Mezzanine Certificates or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is not a Plan nor or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (Bii) for Mezzanine Certificates other than the Class M-10 Certificates it has acquired and is holding such Mezzanine Certificates (other than the Class M-10 Certificates) in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Certificates (other than the Class M-10 Certificates) must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P o▇ (▇▇▇) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer, the Guarantor and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual 143 Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice that it is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)
(A) such transferee immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or is not holding an Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a sell such Residual Certificate to a Disqualified Organization purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any other Person will not cause Affiliate of the Trust Fund to cease to qualify as a REMIC or cause Certificate Registrar. The proceeds of such sale, net of the imposition of a tax upon the Trust Fund.
commissions (e) Subject which may include commissions payable to the preceding subsectionsCertificate Registrar or its Affiliates), upon surrender for registration of transfer expenses and taxes due, if any, shall be remitted by the Certificate Registrar to such purported Transferee. The terms and conditions of any Certificate at sale under this clause (iii)(B) shall be determined in the office sole discretion of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, not be liable to any Person having an Ownership Interest in the name a Residual Certificate as a result of the designated transferee or transferees, one or more new Certificates its exercise of the same Class of a like aggregate Percentage Interestsuch discretion.
(fiv) At The Trustee shall make available to the option Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any Holderregulated investment company, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interestreal estate investment trust, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee common trust fund, partnership, trust, estate or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.or
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates, Series 2004-R12)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides Depositor, the Certificate Registrar Trustee and the Master Servicer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee and the Master Servicer that the purchase and holding of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemptions, and that it understands that there are certain conditions to the availability of the Underwriters' Exemptions, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P o▇ (▇▇▇) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Cert
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asst Back Ps THR Cert Ser 2003-2)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P or (iii) (▇) ▇t is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding two paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding two paragraphs shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, by net of the commissions (which may include commissions payable to the Certificate Registrar or its acceptance thereofAffiliates), expenses and taxes due, if any, shall be deemed for all purposes remitted by the Certificate Registrar to have consented such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person will such provisions shall not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions shall not cause any Trust Fund REMIC to cease to qualify as a REMIC and shall not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Cert
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Argent Securities Inc Asset Backed Pass Thru Cer Ser 2003-W9)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this AgreementThe Certificate Registrar shall keep or cause to be kept, there shall be maintained at the office of the Certificate Registrar or agency maintained pursuant to ss. 3.8, a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Owner Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Owner Trustee is hereby initially appointed shall be the initial Certificate Registrar. The Certificates have not been registered under the Securities Act of 1933, as amended (and hereby agrees to actthe "Securities Act") as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein providedor any state securities law. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer shall have register the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate shall be made unless that such resale or transfer is made pursuant to an effective registration statement under the Act, Securities Act or is to the Seller or unless it shall have received (i) a representation letter substantially in the form of Exhibit D hereto or (ii) such other representations (or an Opinion of Counsel) satisfactory to the Owner Trustee to the effect that such resale or transfer is made (A) in a transaction exempt from the registration requirements of the Securities Act and effective registration or qualification under applicable state securities laws, or (B) to a person who the transferor of the Certificate reasonably believes is made in a transaction which does not require qualified institutional buyer (within the meaning of Rule 144A under the Securities Act) that is aware that such registration resale or qualification. If such a other transfer is to be made without registration or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A 144A. Until the earlier of (i) such time as the Certificates shall be registered pursuant to a registration statement filed under the Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D hereto, Securities Act and (ii) in all other casesthe date three years from the later of the date of the original authentication and delivery of the Certificates and the date any Certificate was acquired from the Seller or any affiliate of the Seller, the Certificates shall bear a legend as follows: THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH STATE SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE UNLESS SUCH RESALE OR TRANSFER (A) except where IS MADE IN ACCORDANCE WITH ss. 3.4 OF THE OWNER TRUST AGREEMENT PERTAINING TO THE ADVANTA AUTO RECEIVABLES TRUST 1997-2 (THE "AGREEMENT") AND (B) IS MADE (i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (ii) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, (iii) TO THE SELLER OR (iv) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT THAT IS AWARE THAT THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND (C) UPON THE SATISFACTION OF CERTAIN OTHER REQUIREMENTS SPECIFIED IN THE AGREEMENT. NEITHER THE SELLER, THE MASTER SERVICER, THE TRUST NOR THE OWNER TRUSTEE IS OBLIGATED TO REGISTER THE CERTIFICATES UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS. The Certificate Registrar shall not register the Depositor or an Affiliate thereof initial placement of the Certificates unless it shall have received a Purchaser Representation Letter in the form of Exhibit C. The Certificate Registrar shall provide the Trust Collateral Agent with a list of the names and addresses of the Certificateholders on the Closing Date in the form which such information is the transferor or transferee, an Opinion of Counsel satisfactory provided to the Certificate Registrar to the effect that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of by the Depositor, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as such), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None Upon any transfers of the Depositor, the Trustee or the Certificate Registrar is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificates under the Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate Registrar and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None of the Certificates except for the Class ___, Class ___, Class ___, Class ___, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentenceCertificates, the Certificate Registrar shall require notify the prospective Trust Collateral Agent of the name and address of the transferee of any Class ___in writing, Class ___by facsimile, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition on the day of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Trust Agreement (Advanta Automobile Receivables Trust 1997-2)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, the Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___X Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class X Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a Definitive Certificatetrust, then the depositor of which is an affiliate of the Seller), the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: either (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, and F-1 or (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorTrustee, the Servicer, the Trustee Certificate Registrar or the Certificate Registrar in their respective capacities as suchTrust Fund), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___X Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class X Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the a Class ___X Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with "Plan Assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated at 29 C.F.R. Section 2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Depositor, the Certificate Registrar Trustee and the Servicer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee and the Servicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Servicer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar shall require the prospective transferee of Depositor or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate affiliate thereof shall be deemed to have represented by its acquisition that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Class X Certificate, Class P Certificate or Residual Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Servicer, the Trustee, the Certificate Registrar and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement in the form attached hereto as Exhibit F-2 ) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 5.02(d) set forth prior to this subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee and to any amendment of this Agreement deemed necessary by counsel the Certificate Registrar at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Trustee and the Certificate Registrar, to the effect that such modification of, addition to or elimination of such provisions will not cause any REMIC created hereunder to cease to qualify as a REMIC and will not cause any REMIC created hereunder, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hg) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ih) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard customary procedures.
(i) The Trustee will cause the Certificate Registrar (unless the Trustee is acting as Certificate Registrar) to provide notice to the Trustee of each transfer of a Certificate and to provide the Trustee with an updated copy of the Certificate Registrar on the first Business Day in January and June of each year, commencing in January 2002.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset Backed Securities Corp Home Equity Ln Tr Ser 2001-He2)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this AgreementThe Certificate Registrar shall keep or cause to be kept, there shall be maintained at the office of the Certificate Registrar or agency maintained pursuant to ss. 3.8, a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Owner Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Owner Trustee is hereby initially appointed shall be the initial Certificate Registrar. The Certificates have not been registered under the Securities Act of 1933, as amended (and hereby agrees to actthe "Securities Act") as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein providedor any state securities law. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer shall have register the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate shall be made unless that such resale or transfer is made pursuant to an effective registration statement under the Act, and effective registration or qualification under applicable state securities laws, Securities Act or is made in a transaction which does not require such registration or qualification. If such a transfer is to be made without registration or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D hereto, and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as such), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee or the Certificate Registrar is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificates under the Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate Registrar and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None of the Certificates except for the Class ___, Class ___, Class ___, Class ___, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from investment letter acceptable to and in form and substance satisfactory to the proposed transferee substantially in Owner Trustee or (ii) such other representations (or an Opinion of Counsel) satisfactory to the form attached as Exhibit F-1 hereto, Owner Trustee to the effect that, among other things, that such resale or transfer is made (A) such transferee is not in a Disqualified Organization transaction exempt from the registration requirements of the Securities Act and applicable state securities laws, or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) to a person who the transferor of the Certificate reasonably believes is a qualified institutional buyer (within the meaning of Rule 144A under the Securities Act) that is aware that such transferee resale or other transfer is not a Non- U.S. Person, being made in reliance upon Rule 144A. Until the earlier of (Ci) such transferee has no present knowledge or expectation that it will become insolvent or subject time as the Certificates shall be registered pursuant to a bankruptcy proceeding for so long as registration statement filed under the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, Securities Act and (ii) a certificate the date three years from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose later of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 original authentication and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender delivery of the Certificates to be exchanged at and the office date any Certificate was acquired from the Seller or any affiliate of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver Seller, the Certificates which the Certificateholder making the exchange is entitled to receive.
shall bear a legend as follows: THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (gTHE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE IN RELIANCE UPON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH STATE SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE UNLESS SUCH RESALE OR TRANSFER (A) Every Certificate presented or surrendered for transfer or exchange shall IS MADE IN ACCORDANCE WITH ss. 3.4 OF THE OWNER TRUST AGREEMENT PERTAINING TO THE ADVANTA AUTO RECEIVABLES TRUST 1998-1 (if so required by the Certificate RegistrarTHE "AGREEMENT") be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
AND (hB) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
IS MADE (i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate RegistrarPURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (ii) IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS, (iii) TO THE SELLER OR (iv) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT THAT IS AWARE THAT THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A AND (C) UPON THE SATISFACTION OF CERTAIN OTHER REQUIREMENTS SPECIFIED IN THE AGREEMENT. NEITHER THE SELLER, THE MASTER SERVICER, THE TRUST NOR THE OWNER TRUSTEE IS OBLIGATED TO REGISTER THE CERTIFICATES UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE SECURITIES LAWS. The Certificate Registrar shall hold provide the Trust Collateral Agent with a list of the names and addresses of the Certificateholder(s) on the Closing Date in the form which such canceled Certificates information is provided to the Certificate Registrar by the Depositor. Upon any transfers of Certificates, the Certificate Registrar shall notify the Trust Collateral Agent of the name and address of the transferee in accordance with its standard procedureswriting, by facsimile, on the day of such transfer.
Appears in 1 contract
Sources: Trust Agreement (Advanta Automobile Receivables 1998-1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.11 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Residual Certificate is to be made without registration or qualification qualification, the Trustee and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar Master Servicer in their respective capacities its capacity as such), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar Registrar, the Master Servicer and the Depositor Certificate Insurer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Residual Certificate or any interest therein shall be transferred made to (Ai) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns ▇▇ plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code (each, a "Plan") or (Bii) any Person who is directly or indirectly purchasing any such Class the Residual Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Trustee and the Certificate Registrar are provided with a certification of facts and or an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar each that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause any of the Servicer Trustee, the Certificate Registrar or the Trustee Master Servicer to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and of facts or Opinion of Counsel contemplated by the preceding sentence, the Trustee and the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Residual Certificate to certifycertify either (a) it is not a Plan, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate, (b) that it is neither (Ai) a Plan nor (Bii) a Person who is directly or indirectly purchasing any such Class Certificates the Residual Certificate on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126Plan (including any insurance company using funds in its general or separate accounts that may constitute "plan assets") or (c) that (i) it is an insurance company and (ii) all of the funds to be used by it to purchase the Certificates to be purchased by it are held in its general account and virtually all of the assets in such general account are from the receipt of premiums for the purchase of annuity contracts that provide in part: (A) for a benefit that is guaranteed throughout the term of the contract, and (B) for a benefit that is guaranteed for successive periods of at least twelve months; however, benefits from premiums received during any twelve month period may be guaranteed only to the end of such twelve month period, and thereafter for periods of twelve months or more.
(di) No transfer of Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it, and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of, an affidavit and agreement (a "Transfer Affidavit and Agreement" attached hereto as Exhibit F-2) from the proposed transferee substantially Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement (in the form attached hereto as Exhibit F-1 hereto, F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5)with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate such provisions will not cause such Rating Agency to a Disqualified Organization downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or any other Person elimination of such provisions will not cause the Trust Fund to cease to qualify as a REMIC or and will not cause the imposition Trust Fund to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or (y) a Person other than the prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.11, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.11. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hg) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ih) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard customary procedures.
(i) The Trustee will cause the Certificate Registrar (unless the Trustee is acting as Certificate Registrar) to provide notice to the Trustee of each transfer of a Certificate and to provide the Trustee with an updated copy of the Certificate Register on the first Business Day in January and June of each year, commencing January 1997.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Merrill Lynch Mortgage Investors Inc)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___B-2, Class ___, B-3 or Class ___, Class ___, Class ___ and Class ___ B-4 Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class B-2, Class B-3 or Class B-4 Certificate is to be made without registration or qualification qualification, the Trustee and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall each require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the ServicerTrustee, the Trustee Master Servicer in its capacity as such, the Certificate Insurer or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___B-2, Class ___, B-3 or Class ___, Class ___, Class ___ and Class ___ B-4 Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class B-2, Class B-3 or Class B-4 Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar Registrar, the Master Servicer and the Depositor Certificate Insurer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Subordinate or Residual Certificates except for the Class ___, Class ___, Class ___, Class ___, or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with "plan assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss.2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Depositor, the Trustee, the Master Servicer and the Certificate Registrar Insurer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Depositor, the Trustee, the Master Servicer and the Certificate Registrar Insurer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the Trustee, the Trust Fund or the Trustee Certificate Insurer to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the Trustee, the Trust Fund or the Certificate Insurer. In lieu of such Opinion of Counsel, a Plan, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with Plan Assets of a Plan may provide a certification in the form of Exhibit G to this Agreement, which the Trustee may rely upon without further inquiry or investigation. Neither an Opinion of Counsel nor a certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require the prospective transferee have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets of any Class ___Plan) and the Trustee shall be entitled to conclusively rely upon a representation (which, Class ___upon the request of the Trustee, Class ___, Class ___, Class ___ shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor.
(i) Each Person who has or Class ___ Certificate to certify, and each prospective transferee of who acquires any Class ___, Class ___, Class ___, Class ___ or Class ___ Ownership Interest in a Residual Certificate shall be deemed to have represented by its the acceptance or acquisition of such Certificate, that it is neither Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to Permitted Transferee and shall promptly notify the contrary contained herein, prior to registration Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit and agreement (a "Transfer Affidavit and Agreement" attached hereto as Exhibit F-2) from the proposed transferee substantially Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement (in the form attached hereto as Exhibit F-1 hereto, F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder".
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 5.02(d) set forth prior to this subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee and to any amendment of this Agreement deemed necessary by counsel the Certificate Insurer at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) the prior written consent of the Certificate Insurer and written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause either REMIC I or REMIC II to cease to qualify as a REMIC and will not cause (x) either REMIC I or cause REMIC II, as the imposition case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or (y) a Person other than the prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hg) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ih) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard customary procedures.
(i) The Trustee will cause the Certificate Registrar (unless the Trustee is acting as Certificate Registrar) to provide notice to the Trustee of each transfer of a Certificate and to provide the Trustee with an updated copy of the Certificate Register on the first Business Day in January and June of each year, commencing January 1997.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Asset Backed Cert 1996-Lb2)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws 131 or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by ▇▇▇▇▇'▇, Fitch or S&P or (iii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee. 133
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, 134 common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.suc
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asset Back Pass THR Cer Se 03 12)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act. 125
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P or (iii) (▇) ▇t is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding two paragraphs, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding two paragraphs shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute 126 all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall 127 have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following: 128
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Argent Securities Inc Assset Back Pass THR Certs Ser 2003-W5)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.11 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeServicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Residual Certificate is to be made without registration or qualification qualification, the Trustee and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification under the 1933 Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar Servicer in their respective capacities its capacity as such), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar Registrar, the Servicer and the Depositor Certificate Insurer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Residual Certificate or any interest therein shall be transferred to made unless the prospective transferee of any Residual Certificate certifies that it is not (Ai) any an employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns ▇▇ plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code (each, a "Plan") or (Bii) any a Person who is directly or indirectly purchasing any such Class the Residual Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of of, a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result .
(i) Each Person who has or who acquires any Ownership Interest in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Residual Certificate shall be deemed to have represented by its the acceptance or acquisition of such Certificate, that it is neither Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to Permitted Transferee and shall promptly notify the contrary contained herein, prior to registration Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it, and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of, an affidavit agreement (a "Transfer Affidavit and Agreement" attached hereto as Exhibit F-2) from the proposed transferee substantially Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement (in the form attached hereto as Exhibit F-1 hereto, F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate Transfer of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Residual
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Prudential Securities Secured Financing Corp)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act. 119
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemptions, and that it understands that there are certain conditions to the availability of the Underwriters' Exemptions, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by ▇▇▇▇▇'▇, Fitch or S&P or (iii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding two paragraphs, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding two paragraphs shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute 120 all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall 121 have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following: 122
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.suc
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Argent Securities Inc Asset-Bk Pas Thru Cert Ser 2003-W2)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeServicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___A-1a, Class ___A-▇▇, ▇▇▇▇▇ ▇-▇, Class ___B-5, Class ___C, Class ___ and Class ___ P or Residual Certificate (collectively, the “Private Certificates”) shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Private Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, (ii) the transfer of any such Class C, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Class C, then Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorTrustee, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's ’s prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Private Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Private Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Residual Certificate by the Depositor to an “accredited investor” within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___C, Class ___, Class ___, Class ___, P or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with “Plan Assets” of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. § 2510.3-101 (“Plan Assets”), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee and the Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Servicer, the Trustee, the NIMS Insurer or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with (i) the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor, (ii) the transfer of any such Class C, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any such Class C, Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that it is not purchasing with Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. For so long as the Supplemental Interest Trust is in existence, each beneficial owner of a Class A or Subordinate Certificate Registrar shall require the prospective transferee of or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of such the Class A or Subordinate Certificate, as applicable, or interest therein, that either (i) it is neither (A) not a Plan nor or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”) or (ii)(A) in the case of a Class A or Subordinate Certificate rated, at the time of purchase, not lower than “BBB-” (or its equivalent) by a Rating Agency, the beneficial owner is an accredited investor within the meaning of Prohibited Transaction Exemption 2002-41, as amended from time to time (the “Exemption”) and (B) the acquisition and holding of such Certificate and the separate right to receive payments from the Supplemental Interest Trust are eligible for the exemptive relief available under Prohibited Transaction Class Exemption (“PTCE”) 84-14 (for transactions by independent “qualified professional asset managers”), 91-38 (for transactions by bank collective investment funds), 90-1 (for transactions by insurance company pooled separate accounts), 95-60 (for transactions by insurance company general accounts) or 96-23 (for transactions effected by “in-house asset managers”). Each beneficial owner of a Class M or Class B Certificate or any interest therein that is acquired after the termination of the Supplemental Interest Trust shall be deemed to have represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or a trustee or other Person acting on behalf of a Plan or using “plan assets” of a Plan to effect such acquisition (including any insurance company using funds in its general or separate accounts that may constitute “plan assets”), (ii) it has acquired and is holding such certificate in reliance on the Exemption, and that it understands that there are certain conditions to the availability of the Exemption, including that the certificate must be rated, at the time of purchase, not lower than “BBB-”(or its equivalent) by S&P, Fitch or M▇▇▇▇’▇, and the certificate is so rated or (iii)(1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an “insurance company general account,” as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of (i1) an affidavit from the proposed transferee substantially and agreement (a “Transfer Affidavit and Agreement”), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them, and (2) a certificate from the proposed Transferor to the effect that it does not have knowledge that any statements made in the Transfer Affidavit and Agreement are false.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a “pass-through interest holder” within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a “pass-through interest holder.”
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a sell such Residual Certificate to a Disqualified Organization purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any other Person will not cause Affiliate of the Trust Fund to cease to qualify as a REMIC or cause Certificate Registrar. The proceeds of such sale, net of the imposition of a tax upon the Trust Fund.
commissions (e) Subject which may include commissions payable to the preceding subsectionsCertificate Registrar or its Affiliates), upon surrender for registration of transfer expenses and taxes due, if any, shall be remitted by the Certificate Registrar to such purported Transferee. The terms and conditions of any Certificate at sale under this clause (iii)(B) shall be determined in the office sole discretion of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, not be liable to any Person having an Ownership Interest in the name a Residual Certificate as a result of the designated transferee or transferees, one or more new Certificates its exercise of the same Class of a like aggregate Percentage Interestsuch discretion.
(fiv) At The Trustee shall make available to the option of Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any Holder, its Certificates may be exchanged for other Certificates of authorized denominations tax imposed (A) as a result of the same Class Transfer of an Ownership Interest in a like aggregate Percentage InterestResidual Certificate to any Person who is a Disqualified Organization, upon surrender of including the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 information described in Treasury regulations sections 1.860D-1(b)(5) and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g1.860E-2(a)(5) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory with respect to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate “excess inclusions” of such cancellation shall be delivered to the Trustee by the Residual Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.and (B) as a r
Appears in 1 contract
Sources: Pooling and Servicing Agreement (GE-WMC Asset-Backed Pass-Through Trust, Series 2006-1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the Class ___a Mezzanine Certificate, Class ___CE Certificate, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with "Plan Assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Depositor, the Certificate Registrar Trustee and the Master Servicer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee and the Master Servicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code) in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Depositor, the Master Servicer, the Trustee or the Trust Fund. In the absence case of its having received the certification and Mezzanine Certificates, in lieu of such Opinion of Counsel contemplated by Counsel, any prospective Transferee of such Certificates may provide a certification (which in the preceding sentencecase of the Mezzanine Certificates sold in book-entry form, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall Transferee will be deemed to have represented by its acquisition such certification) in the form of such CertificateExhibit G to this Agreement (or other form acceptable to the Depositor, that it is neither (A) a Plan the Trustee and the Master Servicer), which the Trustee may rely upon without further inquiry or investigation. Neither an Opinion of Counsel nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or certification will be required in connection with assets of a Plan. - 119 - 126
(d) No the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Mezzanine Certificate, Class CE Certificate, Class P Certificate or Residual Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement in the form attached hereto as Exhibit F-2 ) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any of REMIC I, REMIC II or REMIC III to cease to qualify as a REMIC and will not cause any of REMIC I, REMIC II or cause REMIC III, as the imposition case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or (y) a Person other than the prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hg) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ih) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard customary procedures.
(i) The Trustee will cause the Cert
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Brothers Mor Sec Vii Fl Rt MR Pa Th Cer Ser 2000 Lb1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ CE Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate is to be made without registration or qualification qualification, the Trustee and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F- 1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the ServicerTrustee, the Trustee Master Servicer in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ CE Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the a Class ___, Class ___, Class ___, Class ___, CE Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with "Plan Assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Depositor, the Certificate Registrar Master Servicer and any subservicer and the Trustee are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee, the Master Servicer and any subservicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Depositor, the Master Servicer and any subservicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code) in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of the Depositor, the Master Servicer and any subservicer, the Trustee or the Trust Fund. In lieu of such Opinion of Counsel, a Plan, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with Plan Assets of a Plan may provide a certification in the form of Exhibit G to this Agreement (or other form acceptable to the Depositor, the Trustee, the Master Servicer and any subservicer), which the Trustee may rely upon without further inquiry or investigation. In the absence of its having received the certification and Opinion of Counsel or certification contemplated by the preceding sentencethis paragraph, the Certificate Registrar Trustee shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ CE Certificate or Class ___ Residual Certificate to certifycertify that it is not an employee benefit plan subject to ERISA or the Code, and each prospective transferee a Person acting, directly or indirectly, on behalf of any Class ___such Plan or any Person acquiring such Certificates with Plan Assets. Any Plan, Class ___any Person acting, Class ___directly or indirectly, Class ___ on behalf of any such Plan or Class ___ Certificate shall any person using Plan Assets to acquire Mezzanine Certificates will be deemed to have represented that such acquisition is permissible under applicable law, will not constitute or result in any non-exempt prohibited transaction under ERISA or Section 4975 of the Code, will not subject the Depositor, the Master Servicer and any subservicer, the Trustee or the Trust Fund to any obligation in addition to those undertaken in the Agreement and the following conditions are met: (i) the source of funds used to purchase such Mezzanine Certificates is an "insurance company general account" (as such term is defined in ▇▇▇▇ ▇▇-▇▇), (▇▇) the conditions set forth in PTCE 95-60 have been satisfied and (iii) there is no Plan with respect to which the amount of such general account's reserves and liabilities for contracts held by its or on behalf of such Plan and all other Plans maintained by the same employer (or any "affiliate" thereof, as defined in PTCE 95-60) or by the same employee organization exceed 10% of the total of all reserves and liabilities of such general account (as determined under PTCE 95-60) as of the date of the acquisition of such CertificateMezzanine Certificates. An Opinion of Counsel, that it is neither (A) any certification or a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or deemed representation will not be required in connection with assets of a Plan. - 119 - 126
(d) No the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor.
(i) Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement" in the form attached hereto as Exhibit F-1 heretoF-2) from the proposed Transferee, in form and substance satisfactory to the effect Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement (in the form attached hereto as Exhibit F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a transferor affidavit (a "Transferor Affidavit" in the form attached hereto as Exhibit F-2) to the Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D- 1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any of REMIC I, REMIC II or REMIC III to cease to qualify as a REMIC and will not cause any of REMIC I, REMIC II or cause REMIC III, as the imposition case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or (y) a Person other than the prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or and the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Re
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Bros Mort Sec Viiinc Ast Bk Fl Rte Cer Se 1997-Lb5)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act. 128
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P or (iii) (▇) ▇t is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding two paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding two paragraphs shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute 129 all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice that it is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)
(A) such transferee immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or is not holding an Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall 130 have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, by net of the commissions (which may include commissions payable to the Certificate Registrar or its acceptance thereofAffiliates), expenses and taxes due, if any, shall be deemed for all purposes remitted by the Certificate Registrar to have consented such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person will such provisions shall not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions shall not cause any Trust Fund REMIC to cease to qualify as a REMIC and shall not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.surrender
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Argent Securities Inc Asset Backed Pass THR Cert Ser 2003-W8)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-11 Certificate, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate (the “Private Certificates”) shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Private Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's ’s prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Private Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in the Class ___M-11 Certificates is to be made without registration under the 1933 Act (other than in connection with the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor), Class ___then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder’s prospective transferee (which in the case of the Book-Entry Certificates, the Certificateholder and the Certificateholder’s prospective transferee shall be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Private Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an “accredited investor” within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with “Plan Assets” of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. § 2510.3-101 (“Plan Assets”), as named fiduciary ofcertified by such transferee in the form of Exhibit G (or, as trustee of, or with assets in the case of a PlanBook-Entry Certificate, such transferee shall be deemed to represent that it is not a Plan or acquiring with Plan Assets), unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee, the NIMS Insurer and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with (i) the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor, (ii) the Certificate Registrar shall require the prospective transferee transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ such Certificate to certify, and each prospective transferee the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any Class ___, Class ___, Class ___, Class ___ such Certificate from the issuer under the Indenture or Class ___ Certificate the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case such transferee shall be deemed to have represented by its acquisition of such Certificate, that it is neither not purchasing with Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (Awhich, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer, and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a Plan nor result of that acquisition or holding.
(Bi) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a “Transfer Affidavit and Agreement”), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a “pass-through interest holder” within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a “pass-through interest holder.”
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, by net of the commissions (which may include commissions payable to the Certificate Registrar or its acceptance thereofAffiliates), expenses and taxes due, if any, shall be deemed for all purposes remitted by the Certificate Registrar to have consented such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person will such provisions shall not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions shall not cause any Trust Fund REMIC to cease to qualify as a REMIC and shall not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged maintained for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.purpose
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates, Series 2005-R4)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there shall be maintained at the office of the Certificate Registrar a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar may prescribe, the Certificate Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (and hereby agrees to actact in accordance with the terms hereof) as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeDepositor, the Master Servicer and the Special Servicer, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe; provided, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. If the Trustee resigns or is removed in accordance with the terms hereof, the successor trustee shall immediately succeed to its predecessor's duties as Certificate Registrar. The Depositor, the Master Servicer and the Special Servicer, shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.. 252
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Registered Certificate shall be made unless that such transfer is made pursuant to an effective registration statement under the Securities Act, and effective registration or qualification under applicable state securities laws, or is made to a Qualified Institutional Buyer in accordance with Rule 144A promulgated under the Securities Act in a transaction which that does not require such registration or qualification. If such a transfer is to be made without registration under the Securities Act, other than a transfer by the Depositor or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificatean Affiliate thereof, then the Certificate Registrar Trustee shall require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D hereto, by it and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as such), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C B-1 hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E B-2 hereto. Notwithstanding the foregoing, transfers of a beneficial interest in any Class (or portion thereof) of Non-Registered Certificates (other than the Residual Certificates) in accordance with the rules and procedures of the Depository applicable to transfers by its respective participants will be permitted if such transfer is made to a Qualified Institutional Buyer in accordance with Rule 144A promulgated under the Securities Act. None of the Depositor, the Trustee or the Certificate Registrar is obligated to register or qualify the any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Registered Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder Holder of a Non-Registered Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the TrusteeDepositor, the Trustee and the Certificate Registrar and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(ci) None No transfer of the Certificates except for the a Senior Certificate or a Class ___B, Class ___C, Class ___D, Class ___E, Class F, Class G or Class H Certificate or any interest therein shall be transferred to made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns ▇▇ plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, ERISA or Section 4975 of the Code (each, a "Plan") ), or (B) to any Person who is directly or indirectly purchasing any such Class Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets "plan assets" of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification (1) such Plan qualifies as an accredited investor as defined in Rule 501(a)(1) of facts and an Opinion of Counsel which establish to the satisfaction Regulation D of the Certificate Registrar that Securities Act, and at the time of such transfer will not result transfer, such Certificates continue to be rated in a violation of Section 406 of ERISA or Section 4975 one of the Code top four rating categories by at least one Rating Agency or cause (2) such Plan is an "insurance company general account" (within the Servicer or meaning of PTCE 95-60 (as defined below)) and the Trustee to be deemed a fiduciary conditions set forth in Sections I and III of PTCE 95-60 have been satisfied as of the date of acquisition of such Certificate. Each purchaser or transferee that is a Plan or result in the imposition is investing on behalf of an excise tax under Section 4975 or with "plan assets" of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall a Plan will be deemed to have represented by its acquisition that the foregoing conditions have been satisfied.
(ii) No transfer of such Certificate, that it is neither a Residual Certificate or any interest therein shall be made (A) a to any Plan nor or (B) a to any Person who is directly or indirectly purchasing any such Class Certificates Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets "plan assets" of a Plan. - 119 - 126
(d) No transfer of a Class J, Class K, Class L, Class M, Class N, Class O, Class P 253 or Class Q Certificate or any Residual Certificate interest therein shall be made (A) to any Plan or (B) to any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with "plan assets" of a Non-U.S. Person. Notwithstanding anything Plan unless the prospective transferee of any such Certificate or any interest therein provides a certification of facts to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual CertificateDepositor, the Certificate Registrar shall have received (i) an affidavit from Master Servicer and the proposed transferee Trustee substantially in the form attached as Exhibit F-1 hereto, to the effect thatthat (or, among other things, (A) if such transferee Certificate is not a Disqualified Organization or an agent (including a brokerin certificated form, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, represent that) the receipt of distributions in respect purchase of such Residual Certificate. If Certificate by or on behalf of, or with "plan assets" of, such Plan is permissible under applicable law, will not constitute or result in any purported transfer of a Residual Certificate shall be in violation non-exempt prohibited transaction under ERISA or Section 4975 of the provisions of this Section 5.02(d)Code, then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause subject the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate RegistrarDepositor, the Trustee or the Authenticating Agent shall execute and authenticate Master Servicer to any obligation in addition to those undertaken herein, and the Certificate Registrar shall deliver, following conditions are met: (1) such Plan qualifies as an accredited investor as defined in the name Rule 501(a)(1) of Regulation D of the designated transferee or transfereesSecurities Act, one or more new Certificates (2) the source of funds used to purchase such Certificate is an "insurance company general account" (as such term is defined in United States Department of Labor Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and (3) the conditions set forth in Sections I and III of PTCE 95-60 have been satisfied as of the same Class date of the acquisition of such Certificates. Any purchaser of a like aggregate Percentage Interest.
Class J, Class K, Class L, Class M, Class N, Class O, Class P or Class Q Certificate or any interest therein will be deemed to have represented by such purchase that either (fa) At such purchaser is not a Plan and is not purchasing such Certificates by or on behalf of, or with "plan assets" of, any Plan or (b) the option purchase of any Holdersuch Certificate by or on behalf of, its Certificates may be exchanged for other Certificates of authorized denominations or with "plan assets" of, such Plan is permissible under applicable law, will not result in any non-exempt prohibited transaction under ERISA or Section 4975 of the same Class of a like aggregate Percentage InterestCode, upon surrender of and will not subject the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange Depositor, the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate Master Servicer to any obligation in addition to those undertaken herein, and the following conditions are met: (i) such Plan qualifies as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, (ii) the source of funds used to purchase such Certificate Registrar shall deliver is an "insurance company general account" (as such term is defined in PTCE 95-60) and (iii) the Certificates which conditions set forth in Sections I and III of PTCE 95-60 have been satisfied as of the Certificateholder making date of the exchange acquisition of such Certificates. The Trustee may require that any prospective transferee of a Certificate that is entitled held as a Definitive Certificate provide such certifications as the Trustee may deem desirable or necessary in order to receive.
(g) Every establish that such transferee or the Person in whose name such registration is requested is not a Plan or a Person who is directly or indirectly purchasing such Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed byon behalf of, as named fiduciary of, as trustee of, or be accompanied by with "plan assets" of a written instrument Plan or that the conditions of an acceptable alternative have been satisfied. The Trustee shall not have any responsibility to monitor or restrict the transfer of Ownership Interests in any Certificates that are in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of CertificatesBook-Entry Certificate.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (GMAC Commercial Mortgage Securities Inc. Series 2004-C2)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ CE Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate is to be made without registration or qualification qualification, the Trustee and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the ServicerTrustee, the Trustee Master Servicer in its capacity as such, the Certificate Insurer or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ CE Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar Registrar, the Master Servicer and the Depositor Certificate Insurer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the a Class ___, Class ___, Class ___, Class ___, CE or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with "plan assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Depositor, the Trustee, the Master Servicer and the Certificate Registrar Insurer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Depositor, the Trustee, the Master Servicer and the Certificate Registrar Insurer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the Trustee, the Trust Fund or the Trustee Certificate Insurer to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the Trustee, the Trust Fund or the Certificate Insurer. In lieu of such Opinion of Counsel, a Plan, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with Plan Assets of a Plan may provide a certification in the form of Exhibit G to this Agreement, which the Trustee may rely upon without further inquiry or investigation. Neither an Opinion of Counsel nor a certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require the prospective transferee have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets of any Class ___Plan) and the Trustee shall be entitled to conclusively rely upon a representation (which, Class ___upon the request of the Trustee, Class ___, Class ___, Class ___ shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor.
(i) Each Person who has or Class ___ Certificate to certify, and each prospective transferee of who acquires any Class ___, Class ___, Class ___, Class ___ or Class ___ Ownership Interest in a Residual Certificate shall be deemed to have represented by its the acceptance or acquisition of such Certificate, that it is neither Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to Permitted Transferee and shall promptly notify the contrary contained herein, prior to registration Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit and agreement (a "Transfer Affidavit and Agreement" attached hereto as Exhibit F-2) from the proposed transferee substantially Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement (in the form attached hereto as Exhibit F-1 hereto, F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 5.02(d) set forth prior to this subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee and to any amendment of this Agreement deemed necessary by counsel the Certificate Insurer at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) the prior written consent of the Certificate Insurer and written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause REMIC I or REMIC II to cease to qualify as a REMIC and will not cause REMIC I or cause REMIC II, as the imposition case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or (y) a Person other than the prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hg) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ih) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard customary procedures.
(i) The Trustee will cause the Certificate Registrar (unless the Trustee is acting as Certificate Registrar) to provide notice to the Trustee of each transfer of a Certificate and to provide the Trustee with an updated copy of the Certificate Register on the first Business Day in January and June of each year, commencing June 1997.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Broth Mor Sec Vii Asset Bac Float Rt Cer Se 1997 Lb1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trust Administrator shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trust Administrator in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trust Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby Trust Administrator will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trust Administrator shall at any time not be the Certificate Registrar, the Trust Administrator shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trust Administrator and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Trust Administrator, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Certificate Registrar, the Trustee or the Certificate Registrar Trust Administrator is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify 124 the Trustee, the Trust Administrator, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides Depositor, the Certificate Registrar Trustee, the Trust Administrator and the Master Servicer are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee, the Trust Administrator and the Master Servicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the Trustee, the Trust Administrator or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the Trustee, the Trust Administrator or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trust Administrator shall be entitled to conclusively rely upon a representation (which, upon the request of the Trust Administrator, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan investor, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P o▇ (▇▇▇) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate or Residual Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraph, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the Trust Administrator, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding. 125
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder." 126
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trust Administrator shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trust Administrator.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trust 127 Administrator at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Administrator, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trust Administrator shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrust Administrator maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent Trust Administrator shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.or
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset Backed Pass Through Certificates 2002-3)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P o▇ (▇▇▇) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. 137 If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice that it is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)
(A) such transferee immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or is not holding an Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Certi
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mort Sec Inc Asset Backed Pass THR Certs Se 03 11)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___Private Mezzanine Certificate, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Private Mezzanine Certificate, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's ’s prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Private Mezzanine Certificates, the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___If a transfer of an Ownership Interest in the Private Mezzanine Certificates is to be made without registration under the 1933 Act (other than in connection with the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor), Class ___then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder’s prospective transferee (which in the case of the Book-Entry Certificates, the Certificateholder and the Certificateholder’s prospective transferee shall be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Private Mezzanine Certificate, Class CE Certificate, Class P Certificate or Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an “accredited investor” within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with “Plan Assets” of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. § 2510.3-101 (“Plan Assets”), as named fiduciary ofcertified by such transferee in the form of Exhibit G (or, as trustee of, or with assets in the case of a PlanBook-Entry Certificate, such transferee shall be deemed to represent that it is not a Plan or acquiring with Plan Assets), unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee, the NIMS Insurer and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with (i) the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor, (ii) the Certificate Registrar shall require the prospective transferee transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ such Certificate to certify, and each prospective transferee the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any Class ___, Class ___, Class ___, Class ___ such Certificate from the issuer under the Indenture or Class ___ Certificate the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case such transferee shall be deemed to have represented by its acquisition of such Certificate, that it is neither (Anot purchasing with Plan Assets) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate and the Trustee shall be made entitled to conclusively rely upon a Non-U.S. Person. Notwithstanding anything to representation (which, upon the contrary contained hereinrequest of the Trustee, prior to registration of any transfer, sale or other disposition of shall be a Residual Certificate, the Certificate Registrar shall have received (iwritten representation) an affidavit from the proposed transferee substantially in Depositor of the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) status of such transferee is not a Disqualified Organization or as an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition affiliate of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual CertificateDepositor. If any purported transfer of a Residual Certificate shall be or any interest therein is acquired or held in violation of the provisions of this Section 5.02(d)the preceding paragraphs, then the prior Holder next preceding permitted beneficial owner shall be treated as the beneficial owner of the Residual that Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof beneficial owner. Any purported beneficial owner whose acquisition or taking holding of any other action with respect to such purported Holder under Certificate or interest therein was effected in violation of the provisions of this Agreement. The prior Holder the preceding paragraph shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at indemnify and hold harmless the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual CertificatesDepositor, by its acceptance thereofthe Master Servicer, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 Trustee, the NIMS Insurer, and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify from and against any and all liabilities, claims, costs or expenses incurred by those parties as a REMIC result of that acquisition or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificatesholding.
(i) All Certificates surrendered for transfer and exchange Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be physically canceled deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a certificate of such cancellation shall be delivered Residual Certificate are expressly subject to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.following provisions:
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P or (▇▇▇) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC and will not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Certificat
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates Series 2004-R2)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-7 Certificates, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class M-7 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___M-7 Certificates, the Class ___CE Certificates, the Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in the Class ___M-7 Certificates is to be made without registration under the 1933 Act (other than in connection with the initial issuance thereof or a transfer thereof by the Depositor or one of its Affiliates), Class ___then the 104 Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder's prospective transferee (which in the case of the Book-Entry Certificates, the Certificateholder and the Certificateholder's prospective transferee will be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Class M-7 Certificate, a Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless either (i) the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee, the NIMS Insurer, the Trust Fund and the Master Servicer and on which establish they may rely, to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non- exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund or (ii) solely in the case of the Class M-7 Certificates, the Trustee receives a certificate from the transferee in the form of Exhibit G that the Class M-7 Certificates have been offered in an underwriting or placement within the meaning of Prohibited Transaction Class Exemption 2002-41, as amended. Neither an Opinion of Counsel nor any certification shall be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificate Registrar shall require (other than the prospective transferee of Class M-7 Certificates) or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of interest in any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate such Certificates shall be deemed to have represented represented, by virtue of its acquisition or holding of that Certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) in the case of the Mezzanine Certificates other than the Class M- 7 Certificates, it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that such Certificate must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's or S&P or (iii) (1) it ▇▇ ▇▇ insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. Each beneficial owner of a Class M-7 Certificate or any interest therein which is acquired on or following the time a certification has been made under subsection (c)(ii) above shall be deemed to have 105 represented, by virtue of its acquisition or holding of the Certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets or (ii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding two paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding two paragraphs shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee. 106
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a sell such Residual Certificate to a Disqualified Organization purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any other Person will not cause Affiliate of the Trust Fund to cease to qualify as a REMIC or cause Certificate Registrar. The proceeds of such sale, net of the imposition of a tax upon the Trust Fund.
commissions (e) Subject which may include commissions payable to the preceding subsectionsCertificate Registrar or its Affiliates), upon surrender for registration of transfer expenses and taxes due, if any, shall be remitted by the Certificate Registrar to such purported Transferee. The terms and conditions of any Certificate at sale under this clause (iii)(B) shall be determined in the office sole discretion of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, not be liable to any Person having an Ownership Interest in the name a Residual Certificate as a result of the designated transferee or transferees, one or more new Certificates its exercise of the same Class of a like aggregate Percentage Interestsuch discretion.
(fiv) At The Trustee shall make available to the option Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any Holderregulated investment company, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interestreal estate investment trust, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee common trust fund, partnership, trust, estate or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.organization des
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___A-1A Certificates, Class ___M-7 Certificates, Class ___CE Certificate, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class A-1A Certificates, Class M-7 Certificates, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___A-1A Certificates, Class ___M-7 Certificates, the Class ___CE Certificates, the Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class A-1A Certificates, Class M-7 Certificate, Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) will be required in connection with the transfer, on the Closing Date, of any 113 Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Class A-1A Certificates or Mezzanine Certificates (other than Class M-7 Certificates) or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Class A-1A Certificates or Mezzanine Certificates (other than Class M-7 Certificates) in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Class A-1A Certificates or Mezzanine Certificates (other than the Class M-7 Certificates) must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P or (▇▇▇) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. Each beneficial owner of a Class M-7 Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of the Certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets or (ii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate, Class A-1A Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Certificate Registrar to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any Trust Fund REMIC to cease to qualify as a REMIC or and will not cause any Trust REMIC, as the imposition of a case may be, to be subject to an entity-level tax upon caused by the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer Transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Residual
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Ameriquest Mortgage Sec Inc Asset Bk Pas THR Cert Se 2004 R3)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-12 Certificate, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate (the “Private Certificates”) shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Private Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Class CE, then Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to holders of the Owner Trust Certificates (as defined in the Indenture)), the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's ’s prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Private Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Private Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Residual Certificate by the Depositor to an “accredited investor” within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with “Plan Assets” of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. § 2510.3-101 (“Plan Assets”), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with (i) the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any such Class CE, Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be have deemed to have represented by its acquisition of such Certificate, that it is neither (Anot purchasing with Plan Assets) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate and the Trustee shall be made entitled to conclusively rely upon a Non-U.S. Person. Notwithstanding anything to representation (which, upon the contrary contained hereinrequest of the Trustee, prior to registration of any transfer, sale or other disposition of shall be a Residual Certificate, the Certificate Registrar shall have received (iwritten representation) an affidavit from the proposed transferee substantially in Depositor of the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) status of such transferee is not a Disqualified Organization or as an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition affiliate of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual CertificateDepositor. If any purported transfer of a Residual Certificate shall be or any interest therein is acquired or held in violation of the provisions of this Section 5.02(d)the preceding paragraphs, then the prior Holder next preceding permitted beneficial owner shall be treated as the beneficial owner of the Residual that Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof beneficial owner. Any purported beneficial owner whose acquisition or taking holding of any other action with respect to such purported Holder under Certificate or interest therein was effected in violation of the provisions of this Agreement. The prior Holder the preceding paragraph shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at indemnify and hold harmless the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual CertificatesDepositor, by its acceptance thereofthe Master Servicer, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 Trustee, the NIMS Insurer and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify from and against any and all liabilities, claims, costs or expenses incurred by those parties as a REMIC result of that acquisition or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificatesholding.
(i) All Certificates surrendered for transfer and exchange Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be physically canceled deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a certificate of such cancellation Residual Certificate are expressly subject to the following provisions:
(e) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be delivered to the Trustee by a Permitted Transferee and shall promptly notify the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates of any change or impending change in accordance with its standard proceduresstatus as a Permitted Transferee.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Park Place Securities, Inc. Series 2005-Wcw1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.11 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeServicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of a Class BB Certificate shall be made to a non-United States person and no transfer of any Class ___BB Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ X Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class BB Certificate, a Class X Certificate or a Residual Certificate is to be made without registration or qualification qualification, the Trustee and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, E; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification under the 1933 Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, Depositor or the Trustee or the Certificate Registrar in their respective capacities its capacity as such), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially upon which such Opinion of Counsel is based, if any; provided, however, that no such opinion shall be required in connection with the form attached as Exhibit E heretotransfers effected on the Closing Date. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class BB Certificate, a Class X or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Residual Certificate or any interest therein shall be transferred made to (Ai) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns ▇▇ plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code (each, a "Plan") or (Bii) any Person who is directly or indirectly purchasing any such Class the Residual Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Trustee and the Certificate Registrar are provided with a certification of facts and or an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar each that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause any of the Trustee, the Certificate Registrar or the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and of facts or Opinion of Counsel contemplated by the preceding sentence, the Trustee and the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Residual Certificate to certifycertify either (a) it is not a Plan, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate, (b) that it is neither (Ai) a Plan nor (Bii) a Person who is directly or indirectly purchasing any such Class Certificates the Residual Certificate on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126Plan (including any insurance company using funds in its general or separate accounts that may constitute "plan assets") or (c) that (i) it is an insurance company and (ii) all of the funds to be used by it to purchase the Certificates to be purchased by it are held in an "insurance company general account" (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and that the purchase and holding of such Certificates are covered by PTCE 95-60.
(di) No transfer of Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it, and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of, an affidavit and agreement (a "Transfer Affidavit and Agreement" attached hereto as Exhibit E) from the proposed transferee substantially Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement (in the form attached hereto as Exhibit F-1 hereto, E) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit E) to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee. (v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any REMIC created hereunder to cease to qualify as a REMIC and will not cause any REMIC created hereunder to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.11, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.11. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hg) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ih) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard customary procedures.
(i) The Trustee will cause the Certificate Registrar (unless the Trustee is acting as Certificate Registrar) to provide notice to the Trustee of each transfer of a Certificate and to provide the Trustee with an updated copy of the Certificate Register on the first Business Day in January and June of each year, commencing January 2000.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Structured Asset Securities Corp)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this AgreementThe Certificate Registrar shall keep or cause to be kept, there shall be maintained at the office of the Certificate Registrar or agency maintained pursuant to Section 3.8, a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Owner Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (and hereby agrees to act) as Bankers Trust Company shall be the initial Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate RegisterRegistrar.
(b) The Certificate Registrar shall provide the Paying Agent with a list of the names and addresses of the Certificateholders on the Closing Date in the form in which such information is provided to the Certificate Registrar. Upon any transfers of Certificates, the Certificate Registrar shall promptly notify the Paying Agent (if other than the Certificate Registrar) of the name and address of the transferee in writing, by facsimile.
(c) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ a Certificate shall be made unless that (i) the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), and any applicable State securities laws are complied with, (ii) such transfer is exempt from the registration requirements under said Securities Act and laws or (iii) such transfer is made pursuant to an effective registration statement under a Person who the transferor reasonably believes is a "qualified institutional buyer" (as defined in Rule 144A of the Securities Act, and effective registration ) that is purchasing such Certificate for its own account or qualification under applicable state securities laws, or the account of a qualified institutional buyer to whom notice is given that the transfer is being made in a transaction which does not require such registration or qualification. If such reliance on said Rule 144A. In the event that a transfer is to be made without registration or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D hereto, and clause (ii) above, the Certificateholder desiring to effect such transfer and such Certificateholder's prospective transferee must each (x) certify in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory writing to the Certificate Registrar the facts surrounding such transfer and (y) provide the Certificate Registrar with a written opinion of counsel in form and substance satisfactory to the effect Depositor and the Certificate Registrar that such transfer may be made without such registration pursuant to an exemption from the Securities Act or qualification (laws, which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee Depositor or the Certificate Registrar Registrar. In the event that a transfer is to be made in their respective capacities as such)reliance upon clause (iii) above, (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee or the Certificate Registrar is obligated shall have furnished to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificates under the Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate Registrar and the Depositor against a Transferee Certificate, signed by such transferee, in the form of Exhibit C. Neither the Depositor nor the Certificate Registrar is under any liability that obligation to register the Certificates under said Securities Act or any other securities law. The Certificate Registrar may result if the request and shall receive in connection with any transfer is not so exempt or is not made signature guarantees satisfactory to it in accordance with such federal and state lawsits sole discretion.
(cd) None of the Certificates except for the Class ___, Class ___, Class ___, Class ___, or any interest therein In no event shall a Certificate be transferred to (A) any an employee benefit plan, trust annuity or account subject to ERISA or a plan described in Section 4975(e)(1) of the Code (any such plan, trust or other retirement arrangementaccount including any Keogh (HR-10) plans, including individual retirement accounts and annuities, Keog▇ or annuities ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is ▇ other employee benefit plans subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee being referred to be deemed in this Section 6.3 as an "Employee Plan"), a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee trustee of any Class ___Employee Plan, Class ___or an entity, Class ___, Class ___, Class ___ account or Class ___ Certificate to certify, and each prospective transferee other pooled investment fund the underlying assets of any Class ___, Class ___, Class ___, Class ___ which include or Class ___ Certificate shall be are deemed to have represented include Employee Plan assets by its acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.reason
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-7 Certificates, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class M-7 Certificates, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___M-7 Certificates, the Class ___CE Certificates, the Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in the Class ___M-7 Certificates is to be made without registration under the 1933 Act (other than in connection with the initial issuance thereof or a transfer thereof by the Depositor or one of its Affiliates), Class ___then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder's prospective transferee (which in the case of the Book-Entry Certificates, the Certificateholder and 125 the Certificateholder's prospective transferee will be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Class M-7 Certificate, Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee, the NIMS Insurer, the Trust Fund and the Master Servicer and on which establish they may rely, to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates (other than the Class M-7 Certificates) or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates (other than the Class M-7 Certificates) in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates (other than the Class M-7 Certificates) must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P or (iii) (▇) ▇t is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. 126 Each beneficial owner of a Class M-7 Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of the Certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets or (ii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding two paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding two paragraphs shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed 127 Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a sell such Residual Certificate to a Disqualified Organization purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any other Person will not cause Affiliate of the Trust Fund to cease to qualify as a REMIC or cause Certificate Registrar. The proceeds of such sale, net of the imposition of a tax upon the Trust Fund.
commissions (e) Subject which may include commissions payable to the preceding subsectionsCertificate Registrar or its Affiliates), upon surrender for registration of transfer expenses and taxes due, if any, shall be remitted by the Certificate Registrar to such purported Transferee. The 128 terms and conditions of any Certificate at sale under this clause (iii)(B) shall be determined in the office sole discretion of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, not be liable to any Person having an Ownership Interest in the name a Residual Certificate as a result of the designated transferee or transferees, one or more new Certificates its exercise of the same Class of a like aggregate Percentage Interestsuch discretion.
(fiv) At The Trustee shall make available to the option Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any Holderregulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its Certificates record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be exchanged for other Certificates of authorized denominations of accepted by the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receiveTrustee.
(gv) Every Certificate presented or surrendered for transfer or exchange shall The provisions of this Section 5.02(d) set forth prior to this subsection (if so required by the Certificate Registrarv) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer modified, added to or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.eliminated, provided that t
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates Series 2004-W1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___M-7 Certificates, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class M-7 Certificate, Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___M-7 Certificates, the Class ___CE Certificates, the Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any If a transfer of an Ownership Interest in the Class ___M-7 Certificates is to be made without registration under the 1933 Act (other than in connection with the initial issuance thereof or a transfer thereof by the Depositor or one of its Affiliates), Class ___then the Certificate Registrar shall refuse to register such transfer unless it receives (and upon receipt, Class ___, Class ___, Class ___ or Class ___ may conclusively rely upon) a certificate from the Certificateholder desiring to effect such transfer and a certificate from such Certificateholder's prospective transferee (which in the case of the Book-Entry Certificates, the Certificateholder and 124 the Certificateholder's prospective transferee will be deemed to have represented such certification), to the effect that, among other things, the transfer is being made to a qualified institutional buyer as defined in Rule 144A under the Securities Act in accordance with Rule 144A. Any Certificateholder desiring to effect the transfer of a Class M-7 Certificate, a Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee, the NIMS Insurer, the Trust Fund and the Master Servicer and on which establish they may rely, to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) in the case of the Mezzanine Certificates other than the Class M-7 Certificates, it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that such Certificate must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P or (iii) (1) i▇ ▇▇ ▇▇ insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. 125 Each beneficial owner of a Class M-7 Certificate or any interest therein shall be deemed to have represented, by virtue of its acquisition or holding of the Certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets or (ii) (1) it is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding two paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding two paragraphs shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed 126 Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice that it is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)
(A) such transferee immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or is not holding an Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a sell such Residual Certificate to a Disqualified Organization purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any other Person will not cause Affiliate of the Trust Fund to cease to qualify as a REMIC or cause Certificate Registrar. The proceeds of such sale, net of the imposition of a tax upon the Trust Fund.
commissions (e) Subject which may include commissions payable to the preceding subsectionsCertificate Registrar or its Affiliates), upon surrender for registration of transfer expenses and taxes due, if any, shall be remitted by the Certificate Registrar to such purported Transferee. The terms and conditions of any Certificate at sale under this clause (iii)(B) shall be determined in the office sole discretion of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, not be liable to any Person having an Ownership Interest in the name a Residual Certificate as a result of the designated transferee or transferees, one or more new Certificates its exercise of the same Class of a like aggregate Percentage Interestsuch discretion.
(fiv) At The Trustee shall make available to the option Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any Holderregulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its Certificates record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be exchanged for other Certificates of authorized denominations of accepted by the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receiveTrustee.
(gv) Every Certificate presented or surrendered for transfer or exchange shall The provisions of this Section 5.02(d) set forth prior to this subsection (if so required by the Certificate Registrarv) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer modified, added to or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange eliminated, provided that there shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be have been delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.at th
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Argent Securities Inc Asset Back Pass THR Certs Ser 2004 W2)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there shall be maintained at the office of the Certificate Registrar a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar may prescribe, the Certificate Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (and hereby agrees to act) as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided PROVIDED that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer and Special Servicer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___X, Class ___G, Class ___H, Class ___J, Class ___ K, Class L, Class R-I, Class R-II and Class ___ R-III Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Act, and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If such a transfer is to be made without registration or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, receipt of: (i) , if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate from the prospective transferee substantially in the form attached as Exhibit EXHIBIT D hereto. Absent receipt of such certificate, and (ii) such transfer shall be made only by the Initial Purchaser as transferor, or otherwise only after the expiration of two years following the Closing Date. Any transferee from the Initial Purchaser not purchasing in all other cases, (A) except where reliance on Rule 144A under the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory Act shall furnish to the Certificate Registrar to the effect that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as such), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit EXHIBIT E hereto. None of the Depositor, the Trustee or the Certificate Registrar is obligated to register or qualify the Class ___X, Class ___G, Class ___H, Class ___K, Class ___ L, Class R-I, Class R-II and Class ___ R-III Certificates under the Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___X, Class ___F, Class ___G, Class ___H, Class ___ J, Class K, Class L, Class R-I, Class R-II and Class ___ R-III Certificate without registration or qualification. Any Class ___X, Class ___G, Class ___H, Class ___J, Class ___ K, Class L, Class R-I, Class R-II or Class ___ R-III Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate Registrar and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None of the Certificates except for the Class ___A1, Class ___A2, Class ___, A3 or Class ___, X Certificates or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns ▇▇ plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "PlanPLAN") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Master Servicer, the Special Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___G, Class ___H, Class ___J, Class ___R-I, Class ___ R-II or Class ___ R-III Certificate to certify, and each prospective transferee of any Class ___B, Class ___C, Class ___D, Class ___ E or Class ___ F Certificate shall be deemed to have represented by its acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126.
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as Exhibit EXHIBIT F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- Non-U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit EXHIBIT F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, discovery that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause any REMIC in the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust FundFund or any REMIC therein.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Icifc Secured Assets Corp)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ B Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If In the event that such a transfer of a Class B Certificate is to be made without registration or qualification qualification, the Trustee and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall each require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer, and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar Master Servicer in their respective capacities its capacity as such), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based. None of the Depositor, the Trustee or Master Servicer, the Certificate Registrar or the Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ B Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class B Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the a Class ___, Class ___, Class ___, Class ___, B Certificate or Residual Certificate or any interest therein shall be transferred made to (Ai) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns ▇▇ plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the Code (each, a "Plan") or (Bii) any Person who is directly or indirectly purchasing any such the Class B Certificate or Residual Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Trustee and the Certificate Registrar are provided with a certification of facts and or an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar each that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause any of the Servicer Trustee, the Certificate Registrar or the Trustee Master Servicer to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and of facts or Opinion of Counsel contemplated by the preceding sentence, the Trustee and the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ B Certificate or Class ___ Residual Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate, certify either (a) that it is neither (Ai) a Plan nor (Bii) a Person who is directly or indirectly purchasing any such the Class Certificates B Certificate or Residual Certificate on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126Plan (including any insurance company using funds in its general or separate accounts that may constitute "plan assets") or (b) that it is an insurance company and that the source of funds used to purchase the Class B Certificate or Residual Certificates is an "insurance company general account" (as such term is defined in Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and there is no Plan with respect to which the amount of such general account's reserves and liabilities for the contract(s) held by or on behalf of such Plan and all other Plans maintained by the same employer (or an "affiliate" thereof within the meaning of PTCE 95-60) or by the same employee organization exceed 10% of the total of all reserves and liabilities of such general account (as such amounts are determined under PTCE 95-60) as of the date of acquisition of such Certificates.
(di) No transfer of Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it, and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of, an affidavit and agreement (a "Transfer Affidavit and Agreement" attached hereto as Exhibit F-3) from the proposed transferee substantially Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the form Residual Certificates that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a certificate (attached hereto as Exhibit F-1 hereto, F-3) to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder".
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is not a NonUnited States Person or a Disqualified Organization.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Administrator shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5)with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Administrator.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to this subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee the following:
(A) written notification from the Rating Agency to the effect that the modification, addition to or elimination of such provisions will not cause such Rating Agency to downgrade its then-current ratings of any amendment Class of this Agreement deemed necessary by counsel Certificates; and
(B) an Opinion of Counsel, at the expense of the Depositor party seeking to ensure modify, add to or eliminate such provisions, in form and substance satisfactory to the Trustee, to the effect that the transfer such modification of, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause the Trust Fund to cease to qualify as a REMIC and will not cause (x) the Trust Fund to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-related tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hg) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ih) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard customary procedures.
(i) The Trustee will cause the Certificate Registrar (unless the Trustee is acting as Certificate Registrar) to provide notice to the Trustee of each transfer of a Certificate and to provide the Trustee with an updated copy of the Certificate Register on the first Business Day in January and June of each year, commencing June 1996.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Brothers Mor Sec Vii Inc Mor Pa THR Cer Ser 1995 2)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office or agency appointed by the Trustee in accordance with the provisions of the Certificate Registrar Section 8.12 a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (Depositor and hereby agrees to act) as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer each Certificateholder shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar Trustee as to the information set forth in the Certificate Register. The Trustee shall furnish or cause to be furnished to the Depositor and to any Certificateholder a listing of the names and addresses of the Certificateholders on reasonable request.
(b) (i) The Class R Certificates have not been registered or qualified under the Securities Act of 1933, as amended (the "1933 Act"), or any state securities laws or "Blue Sky" laws. No transfer transfer, sale, pledge or other disposition of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ R Certificate shall be made unless that transfer such disposition is made pursuant to an effective registration statement under the Act, 1933 Act and effective registration or qualification under applicable state securities laws or "Blue Sky" laws, or is made in a transaction which does not require such registration or qualification. If such In the event that a transfer is to be made without registration or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under an exemption from the 1933 Act, a certificate from the Trustee shall not register such transfer unless:
(A) the Class R Certificateholder desiring to effect such disposition and such Class R Certificateholder's prospective transferee each certify to the Trustee in writing the facts surrounding such disposition, which certification shall be substantially in the form attached as of Exhibit D J hereto, and ; or
(iiB) in all other cases, (A) except where the Depositor or an Affiliate thereof is Class R Certificateholder desiring to effect such disposition delivers to the transferor or transferee, Trustee an Opinion of Counsel satisfactory to the Certificate Registrar to the effect Trustee that such transfer may be made without such registration or qualification (pursuant to an exemption from the 1933 Act, which Opinion of Counsel shall not be an expense of the Trust Fund or of Trustee. Neither Cityscape, the Depositor, the Servicer, Servicer nor the Trustee or the Certificate Registrar in their respective capacities as such), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee or the Certificate Registrar is are obligated under this Agreement to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ R Certificates under the 1933 Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate R Certificates without such registration or qualification. Any such Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ R Certificateholder desiring to effect such a transfer shall, and does hereby agree to, promptly indemnify and reimburse the Trustee, Cityscape, the Certificate Registrar Depositor and the Depositor against Servicer for costs and expenses incurred in connection with any liability that may result results if the transfer is not so exempt or is not made in accordance with such applicable federal and state laws.
(c) None of the Certificates except for the Class ___, Class ___, Class ___, Class ___, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Financial Asset Securities Corp)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its respective capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None No transfer of the Certificates except for the Class ___a Mezzanine Certificate, Class ___CE Certificate, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, any Person acting, directly or indirectly, on behalf of any such Plan or any Person acquiring such Certificates with "Plan Assets" of a Plan within the Code meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 (each, a "PlanPlan Assets") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides Depositor, the Certificate Registrar Master Servicer and the Trustee are provided with a certification of facts and an Opinion of Counsel which establish establishes to the satisfaction of the Certificate Registrar Depositor, the Trustee and the Master Servicer that the purchase of such transfer Certificates is permissible under applicable law, will not constitute or result in a violation of Section 406 of any prohibited transaction under ERISA or Section 4975 of the Code or cause and will not subject the Servicer Depositor, the Master Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated by shall not be an expense of the preceding sentenceDepositor, the Certificate Registrar shall require Master Servicer, the Trustee or the Trust Fund. In lieu of such Opinion of Counsel, any prospective transferee Transferee of such Certificates may provide a certification (which in the case of any Class ___Mezzanine Certificates, Class ___if such Certificates are Book-Entry Certificates, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall the Transferee will be deemed to have represented by its acquisition such certification) of such Certificatethe foregoing in the form of Exhibit G to this Agreement (or other form acceptable to the Depositor, that it is neither (A) the Trustee and the Master Servicer), which the Trustee may rely upon without further inquiry or investigation. An Opinion of Counsel, any certification or a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or deemed representation will not be required in connection with assets of a Plan. - 119 - 126
(d) No the initial transfer of any such Certificate by the Depositor to an affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor.
(i) Each Person who has or who acquires any Ownership Interest in a Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Trustee or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Trustee of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Trustee shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Trustee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Trustee who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a transferor affidavit (a "Transferor Affidavit," in the form attached hereto as Exhibit F-2 ) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Trustee written notice that it will become insolvent is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Trustee will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Trustee as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Trustee shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Trustee on such terms as the Trustee may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Trustee. Such purchaser may be the Trustee itself or any Affiliate of the Trustee. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Trustee or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Trustee to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Trustee, and the Trustee shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Trustee, to the effect that such modification of, addition to or elimination of such provisions will not cause any of REMIC I, REMIC II or REMIC III to cease to qualify as a REMIC and will not cause any of REMIC I, REMIC II or cause REMIC III, as the imposition case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or (y) a Person other than the prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hg) No service charge to the Certificateholders shall be imposed made for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(ih) All Certificates surrendered for transfer and exchange shall be physically canceled and destroyed by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard customary procedures.
(i) The Trustee will cause the Certificate Registrar (unless the Trustee is acting as Certificate Registrar) to provide notice to the Trustee of each transfer of a Certificate and to provide the Trustee with an updated copy of the Certificate Register on the first Business Day in January and June of each year, commencing in January 2000.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Salomon Brothers Mort Sec Vii Fl Rte Pa THR Cer Ser 1999-Lbi)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Class R Certificate by the Depositor to an "accredited investor" within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the a Class ___CE Certificate, Class ___, Class ___, Class ___, P Certificate or Residual Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with "Plan Assets" of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. ss. 2510.3-101 ("Plan Assets"), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Depositor, the Trustee and the Master Servicer and on which establish they may rely, to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar Depositor or any affiliate thereof shall require have deemed to have represented that such affiliate is not a Plan or a Person investing Plan Assets) and the prospective Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. Each beneficial owner of a Mezzanine Certificates or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate interest therein shall be deemed to have represented represented, by virtue of its acquisition or holding of that certificate or interest therein, that either (i) it is not a Plan or acting, directly or indirectly, on behalf of a Plan or with Plan Assets, (ii) it has acquired and is holding such Mezzanine Certificates in reliance on the Underwriters' Exemption, and that it understands that there are certain conditions to the availability of the Underwriters' Exemption, including that the Mezzanine Certificates must be rated, at the time of purchase, not lower than "BBB-" (or its equivalent) by Moody's, Fitch or S&P or (iii) (▇) ▇t is an insurance company, (2) the source of funds used to acquire or hold the certificate or interest therein is an "insurance company general account," as such term is defined in PTCE 95-60, and (3) the conditions in Sections I and III of PTCE 95-60 have been satisfied. If any Class CE Certificate, Class P Certificate, Residual Certificate or Mezzanine Certificate or any interest therein is acquired or held in violation of the provisions of the preceding two paragraphs, the next preceding permitted beneficial owner shall be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding two paragraphs shall indemnify and hold harmless the Depositor, the Master Servicer, the Trustee, the NIMS Insurer and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a "Transfer Affidavit and Agreement"), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, it has no actual knowledge that such other Person is not a Permitted Transferee.
(E) Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Certificate Registrar written notice that it is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)
(A) such transferee immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or is not holding an Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a "pass-through interest holder."
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, by net of the commissions (which may include commissions payable to the Certificate Registrar or its acceptance thereofAffiliates), expenses and taxes due, if any, shall be deemed for all purposes remitted by the Certificate Registrar to have consented such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person will such provisions shall not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions shall not cause any Trust Fund REMIC to cease to qualify as a REMIC and shall not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Cer
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Asset-Backed Pass-Through Certificates Series 2003-W7)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there shall be maintained at the office of the Certificate Registrar a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar may prescribe, the Certificate Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (and hereby agrees to actact in accordance with the terms hereof) as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeDepositor, the Master Servicer and the Special Servicer, any other bank or trust 146 company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. If the Trustee resigns or is removed in accordance with the terms hereof, the successor trustee shall immediately succeed to its predecessor's duties as Certificate Registrar. The Depositor, the Master Servicer and the Special Servicer, shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(bi) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Registered Certificate shall be made unless that such transfer is made pursuant to an effective registration statement under the Securities Act, and effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If such a transfer is to be made without registration under the Securities Act, other than a transfer by the Depositor or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificatean Affiliate thereof, then the Certificate Registrar Trustee shall require, in order to assure compliance with such laws, receipt by it and the Depositor of: :
(iA) if such transfer is purportedly being made in reliance upon Rule 144A under the Securities Act, a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit B-1 hereto and a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit D B-2 hereto, and ; and
(iiB) in all other cases, (A1) except where a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached hereto as Exhibit B-1 and a certificate from such Certificateholder's prospective transferee substantially in the form attached hereto as Exhibit B-3, and (2) unless the Depositor or an Affiliate thereof is the transferor or transfereedirects otherwise, an Opinion of Counsel satisfactory to the Certificate Registrar Trustee and the Depositor to the effect that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Master Servicer, the Trustee Special Servicer, the Trustee, the Fiscal Agent or the Certificate Registrar in their respective capacities as such).
(ii) Notwithstanding the foregoing, transfers of a beneficial interest in any Class (or portion thereof) of Private Book-Entry Certificates in accordance with the rules and procedures of the Depository applicable to transfers by its respective participants will be permitted if such transfer is made in accordance with Rule 144A promulgated under the Securities Act. Any transfer of a beneficial interest in any Class (or portion thereof) of Private Book-Entry Certificates other than pursuant to Rule 144A, or to a transferee that wishes to take delivery of such interest in definitive form, will be permitted upon:
(A) receipt by the Trustee and the Depositor of the documentation required by Section 5.02(b)(i)(A) or (B); 147
(B) the execution by the Trustee, and the authentication and delivery by the Certificate Registrar to the transferee, of a certificate from the Certificateholder desiring to effect Definitive Certificate representing such transfer substantially in the form attached as Exhibit C hereto and beneficial interest; and
(C) to the extent that the beneficial interest being transferred does not represent the entire Certificate Principal Balance of the related Class, either (1) the execution by the Trustee, and the authentication and delivery by the Certificate Registrar to the Depository (upon surrender by the Depository of the prior Book-Entry Certificate) of, a certificate from new Private Book-Entry Certificate representing the remaining beneficial interest of such Certificateholder's prospective transferee substantially Class of Private Book-Entry Certificates or (2) the appropriate notation by the Trustee on the Private Book-Entry Certificate or otherwise in its books and records as custodian for the Depository evidencing the date of such exchange or transfer and a decrease in the form attached as Exhibit E hereto. denomination of such Private Book-Entry Certificate equal to the denomination of the Definitive Certificate issued in exchange therefor or upon transfer thereof.
(iii) None of the Depositor, the Trustee Trustee, the Fiscal Agent or the Certificate Registrar is obligated to register or qualify the any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Registered Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder Holder of a Non-Registered Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the Depositor, the Trustee, the Fiscal Agent and the Certificate Registrar and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(ci) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Senior Certificate or any interest therein shall be transferred to made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns ▇▇ plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, ERISA or Section 4975 of the Code (each, a "Plan") ), or (B) to any Person who is directly or indirectly purchasing any such Class Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets "plan assets" of a Plan, unless unless: either (A) (1) such Plan qualifies as an accredited investor within the prospective transferee provides the Certificate Registrar with a certification meaning of facts and an Opinion of Counsel which establish Prohibited Transaction Exemption 94-29 (granted to the satisfaction certain affiliates of the Certificate Registrar that Depositor) and (2) at the time of such transfer will not result transfer, the Senior Certificates continue to be rated in a violation of Section 406 of ERISA or Section 4975 one of the Code top three rating categories by at least one Rating Agency or cause the Servicer or the Trustee to be deemed a fiduciary of (B) such Plan or result is an "insurance company general account" (within the meaning of PTCE 95-60 (as defined below)) and the conditions set forth in the imposition Sections I and III of an excise tax under Section 4975 PTCE 95-60 have been satisfied as of the Code. In the absence date of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate.
(ii) No transfer of a Certificate, that it is neither other than a Senior Certificate, or any interest therein shall be made (A) a to any Plan nor or (B) a to any Person who is directly or indirectly purchasing any such Class Certificates Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets "plan assets" of a Plan, unless the prospective transferee provides the Depositor, the Trustee, the Fiscal Agent and the Master Servicer with an opinion of counsel satisfactory to the Depositor, the Trustee, the Fiscal Agent and the Master Servicer that such transfer is permissible under applicable law, will 148 not constitute or result in any non-exempt prohibited transaction under ERISA or Section 4975 of the Code and will not subject the Depositor, the Trustee, the Fiscal Agent or the Master Servicer to any obligation in addition to those undertaken herein. In lieu of such opinion of counsel, the prospective transferee of any such Certificate or any interest therein may provide a certification of facts substantially to the effect that (or, if such Certificate is not in certificated form, will be deemed to represent that) the purchase of such Certificate by or on behalf of, or with "plan assets" of, any Plan is permissible under applicable law, will not constitute or result in any non-exempt prohibited transaction under ERISA or Section 4975 of the Code, will not subject the Depositor, the Trustee, the Fiscal Agent or the Master Servicer to any obligation in addition to those undertaken herein, and the following conditions are met: (a) the source of funds used to purchase such Certificate is an "insurance company general account" (as such term is defined in United States Department of Labor Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and (b) the conditions set forth in Sections I and III of PTCE 95-60 have been satisfied as of the date of the acquisition of such Certificates. Any purchaser of a Class B, Class C, Class D, Class E, Class F, Class G and Class H Certificate or any interest therein will be deemed to have represented by such purchase that either (a) such purchaser is not a Plan and is not purchasing such Certificates by or on behalf of, or with "plan assets" of, any Plan or (b) the purchase of any such Certificate by or on behalf of, or with "plan assets" of, any Plan is permissible under applicable law, will not result in any non-exempt prohibited transaction under ERISA or Section 4975 of the Code, and will not subject the Depositor, the Trustee, the Fiscal Agent or the Master Servicer to any obligation in addition to those undertaken herein, and the following conditions are met: (a) the source of funds used to purchase such Certificate is an "insurance company general account" (as such term is defined in PTCE 95-60) and (b) the conditions set forth in Sections I and III of PTCE 95-60 have been satisfied as of the date of the acquisition of such Certificates. The Trustee may require that any prospective transferee of a Subordinated Certificate that is held as a Definitive Certificate provide such certifications as the Trustee may deem desirable or necessary in order to establish that such transferee or the Person in whose name such registration is requested is not a Plan or a Person who is directly or indirectly purchasing such Certificate on behalf of, as named fiduciary of, as trustee of, or with "plan assets" of a Plan. - 119 - 126
(d) No The Trustee shall not have any responsibility to monitor or restrict the transfer of Ownership Interests in any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially Certificates that are in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a NonBook-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Entry Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this AgreementThe Certificate Registrar shall keep or cause to be kept, there shall be maintained at the office of the Certificate Registrar or agency maintained pursuant to Section 6.7, a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (and hereby agrees to act) as shall be the initial Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate RegisterRegistrar.
(b) The Class B Certificates shall initially be retained by the Seller. No transfer of any a Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ B Certificate shall be made unless that the registration requirements of the Act and any applicable state securities laws are complied with, or such transfer is exempt from the registration requirements under said Act and laws. Neither the Seller nor the Trustee is under an obligation to register any of the Class B Certificates under the Act or any other securities law.
(c) No registration of transfer of a Class B Certificate shall be made (i) unless the registration requirements of the Act and any applicable state securities laws are complied with; (ii) unless such transfer is made pursuant to an effective exemption from the registration statement under requirements of the Act, Act and effective registration or qualification under any applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If such a transfer is laws and the Class B Certificateholder desiring to be made without registration or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, receipt of: (i) if effect such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate from the and such Certificateholder's prospective transferee substantially each certifies in writing to the form attached as Exhibit D hereto, Seller and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is Trustee the transferor or transferee, an facts surrounding such transfer and provides both the Seller and the Trustee with a written Opinion of Counsel in form and substance satisfactory to the Certificate Registrar to Seller and the effect Trustee that such transfer may be made without such registration pursuant to an exemption from said Act or qualification (laws, which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee Seller or the Certificate Registrar in their respective capacities as such), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee or the Certificate Registrar is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificates under the Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate Registrar and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None of the Certificates except for the Class ___, Class ___, Class ___, Class ___, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") ; or (Biii) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, until the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially a transfer certificate in the form attached as of Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required G-1 hereto signed by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.transferor
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Daimler Benz Vehicle Receivables Corp)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Securities Administrator shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Securities Administrator in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Securities Administrator shall provide for the registration of Certificates and Uncertificated Intersts and of transfers and exchanges of Certificates and Uncertificated Intersts as herein provided. The Trustee is hereby Securities Administrator will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and Uncertificated Intersts and transfers and exchanges of Certificates and Uncertificated Intersts as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, the Seller, the Servicer, the Securities Administrator and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Securities Administrator shall at any time not be the Certificate Registrar, the Securities Administrator shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register. The Certificate Register in respect of the Uncertificated Intersts shall contain a statement that transfers of the Uncertificated Intersts to a Disqualified Organization are prohibited as provided in this Agreement.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Non-Offered Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a Definitive Certificatetrust, then the depositor of which is an affiliate of the Seller), the Trustee, the Securities Administrator and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: either (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, and F-1 or (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorSeller, the Trustee, the Servicer, the Trustee Certificate Registrar, the Securities Administrator or the Certificate Registrar in their respective capacities as suchTrust Fund), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee Seller, the Certificate Registrar, the Securities Administrator or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Private Certificate shall, and does hereby agree to, indemnify the Trustee, the Seller, the Depositor, the Certificate Registrar Registrar, the Securities Administrator and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(ci) None No transfer of an ERISA-Restricted Certificate shall be made unless the Securities Administrator shall have received in the form attached hereto as Exhibit F-2 or Exhibit G, as applicable, either (i) a certification letter from the transferee of such Certificate, acceptable to and in form and substance satisfactory to the Securities Administrator and the Trustee, to the effect that such transferee is not a Plan or a person using the assets of any such Plan, which representation letter shall not be an expense of the Securities Administrator, the Trustee or the Trust Fund, (ii) if the purchaser is an insurance company and the Certificate has been the subject of an ERISA-Qualifying Underwriting, a representation that the purchaser is an insurance company which is purchasing such Certificates except with funds contained in an “insurance company general account” (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in the case of any such Certificate presented for registration in the Class ___, Class ___, Class ___, Class ___name of a Plan or a person acting on behalf of any such Plan, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangementusing such Plan’s assets, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish satisfactory to the satisfaction Securities Administrator and the Trustee to the effect that the purchase or holding of the such Certificate Registrar that such transfer will not result in a violation of prohibited transactions under Section 406 of ERISA or and/or Section 4975 of the Code and will not subject the Depositor, the Seller, the Trustee, the Securities Administrator or cause the Servicer to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be an expense of such parties or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the CodeTrust Fund. In the absence event the representations referred to in the preceding sentence are not furnished, such representations shall be deemed to have been made to the Securities Administrator by the transferee’s acceptance of its having received an ERISA-Restricted Certificate, or by any beneficial owner who purchases an interest in such Certificate in book-entry form. In the certification event that a representation is violated, or any attempt to transfer an ERISA-Restricted Certificate to a Plan, or a person using a Plan’s assets is attempted without the delivery to the Trustee and the Securities Administrator of the opinion of counsel described above, the attempted transfer or acquisition of such Certificate shall be void and of no effect. Neither an Opinion of Counsel contemplated nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar shall require the prospective transferee of Depositor or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate Affiliate thereof shall be deemed to have represented by its acquisition that such affiliate is not a Plan or a Person investing Plan Assets) and the Securities Administrator and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Securities Administrator, shall be a written representation) from the Depositor of the status of such Certificatetransferee as an affiliate of the Depositor.
(ii) [Reserved]
(iii) If any Certificate or any interest therein is acquired or held in violation of the provisions of Section 5.02(c)(i), the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Servicer, the Seller, the Trustee, the Certificate Registrar, the Underwriter, the Securities Administrator and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Securities Administrator or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Securities Administrator of any transferchange or impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer, sale or other disposition than the initial Transfer, of any Ownership Interest in a Residual Certificate, the Securities Administrator shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a “Transfer Affidavit and Agreement”), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Securities Administrator who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement in the form attached hereto as Exhibit F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the effect Securities Administrator and the Trustee stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Securities Administrator written notice that it will become insolvent is a “pass-through interest holder” within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a “pass-through interest holder.”
(ii) The Securities Administrator will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Securities Administrator as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Securities Administrator and the Trustee shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Securities Administrator shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Securities Administrator shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Securities Administrator on such terms as the Securities Administrator may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Securities Administrator. Such purchaser may be the Securities Administrator itself or any Affiliate of the Securities Administrator. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Securities Administrator or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Securities Administrator to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Securities Administrator, and the Securities Administrator shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Securities Administrator shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Such information shall be provided by the Securities Administrator upon receipt of written request and reasonable compensation.
(v) The provisions of this Section 5.02 5.02(d) set forth prior to this subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Securities Administrator and to any amendment of this Agreement deemed necessary by counsel the Certificate Registrar at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Securities Administrator and the Certificate Registrar, to the effect that such modification of, addition to or elimination of such provisions will not cause any REMIC created hereunder to cease to qualify as a REMIC and will not cause any REMIC created hereunder, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarSecurities Administrator maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent Securities Administrator shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (J.P. Morgan Mortgage Acquisition Corp. 2005-WMC-1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there shall be maintained at the office of the Certificate Registrar a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar may prescribe, the Certificate Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (and hereby agrees to act) as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___X1, Class ___X2, Class ___E, Class ___F, Class ___ G, Class H, Class J, Class K, Class L, Class M, Class NR, Class R-I, Class R-II and Class ___ R-III Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and effective registration or qualification under applicable state securities laws, or is made in a transaction which does not require such registration or qualification. If such a transfer is to be made without registration or 133 qualification and is to be made in connection with the issuance or transfer of a Definitive Certificate, then the Certificate Registrar shall require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D D-1 hereto, (ii) if such transfer is purportedly being made in reliance upon Regulation S under the 1933 Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D-2 hereto and (iiiii) in all other cases, (A) (I) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel, (II) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (III) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto or (B) if the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Master Servicer, the Trustee or the Certificate Registrar in their respective capacities as such), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee Trustee, or the Certificate Registrar is obligated to register or qualify the Class ___X1, Class ___X2, Class ___E, Class ___F, Class ___ G, Class H, Class J, Class K, Class L, Class M, Class NR, Class R-I, Class R-II and Class ___ R-III Certificates under the 1933 Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___X1, Class ___X2, Class ___D, Class ___E, Class ___ F, Class G, Class H, Class J, Class K, Class M, Class NR, Class R-I, Class R-II and Class ___ R-III Certificate without registration or qualification. Any Class ___X1, Class ___X2, Class ___E, Class ___F, Class ___ G, Class H, Class J, Class K, Class L, Class M, Class NR, Class R-I, Class R-II or Class ___ R-III Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate Registrar and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None Except as provided in Section 8.02(d), none of the Certificates Certificates, except for the Class ___A1, Class ___A2, Class ___A3, Class ___X1, Class X2, Class B, Class C, Class D, Class E or any interest therein Class F Certificates, shall be transferred to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, KeogKeogh plans and collective investm▇▇▇ ▇▇▇ns and collective investment funds unds and separate accounts or other entities in which such plans, accounts or arrangements are invested, that is subject to the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or Section 4975 of the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer Master Servicer, the Certificate Registrar or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code, or such other Opinions of Counsel, officers' certificates, representations or agreements as may be required by and in form and substance satisfactory to the Depositor and the Trustee. In Except as provided in Section 8.02(d), in the absence of its having received the certification and Opinion of Counsel or other documents contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___G, Class ___H, Class ___J, Class ___K, Class ___ L, Class M, Class NR, Class R-I, Class R-II or Class ___ R-III Certificate to certifycertify (or in the case of a Book-Entry Certificate, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate the 134 holder shall be deemed to have represented by its acquisition of such Certificatecertify), that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126.
(d) Notwithstanding Section 8.02(c), transfers of the Class G, Class H, Class J, Class K, Class L, Class M and Class NR Certificates shall be registered by the Certificate Registrar if the Certificate Registrar receives: (i) a representation from the transferee of such Certificate, acceptable to and in form and substance satisfactory to the Certificate Registrar, to the effect that such transferee is not (A) a Plan or (B) a Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, (ii) if the purchaser is an insurance company, a representation that the purchaser is an "insurance company general account" (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 (60 Fed. Reg. 35925, July 12, 1995) ("PTCE 95-60")) and that the purchase and holding of such Certificates is eligible for, and satisfies all of the requirements for relief under, Sections I and III of PTCE 95-60; or (iii) an Opinion of Counsel satisfactory to the Certificate Registrar that the purchase and holding of such Certificate by a Plan, any person acting on behalf of a Plan or using a Plan's assets will not result in the assets of the Trust Fund being deemed to be "plan assets" and subject to the prohibited transaction requirements of ERISA and the Code and will not subject the Trustee or the Certificate Registrar to any obligation in addition to those undertaken in this Agreement. Unless an opinion of counsel described in (iii) is delivered, the representations in (i) or (ii) shall be deemed to have been made to the Certificate Registrar by the transferee's acceptance of a Class G, Class H, Class J, Class K, Class L, Class M or Class NR Certificate.
(e) No transfer of a Class A1, Class A2, Class A3, Class X1, Class X2, Class B, Class C, Class D, Class E or Class F Certificate or any interest therein shall be made to (A) any Plan or (B) any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan unless such transferee qualifies as an accredited investor as defined in Rule 501(a)(1) of Regulation D under the Securities Act and either (1) at the time of such transfer, the Certificates are rated in one of the top four rating categories by at least one Rating Agency, or (2) the purchaser is an insurance company general account that is eligible for, and satisfies all of the requirements of, Sections I and III of Prohibited Transaction Class Exemption 95-60. Each Person who acquires a Class A1, Class A2, Class A3, Class X1, Class X2, Class B, Class C, Class D, Class E or Class F Certificate shall be deemed to have certified that the foregoing conditions are satisfied.
(f) No transfer of any Residual Certificate shall be made to a Non-U.S. United States Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Non-United States Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor 135 substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. United States Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d8.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, discovery that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d8.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d8.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d8.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 8.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(eg) Each Holder of a Certificate, by its acceptance thereof, shall be deemed to represent that neither MGT nor any of its affiliates has discretionary authority or control with respect to the investment of the Plan's assets invested in the related Certificate, or gives investment advice with respect to the investment of such assets.
(h) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(fi) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and exchange, the Certificate Registrar shall execute, authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(gj) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(hk) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(il) All Certificates surrendered for transfer and exchange shall be physically canceled cancelled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled cancelled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Jp Morgan Chase Commercial Mortgage Securities Corp)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby shall initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___Private Mezzanine Certificate, Class ___CE Certificate, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate (the “Private Certificates”) shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Private Certificate is to be made without registration or qualification and is to be made (other than in connection with (i) the issuance or initial transfer of any such Certificate by the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a Definitive Certificatetransfer of any such Class CE, then Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate (as defined in the Indenture)), the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's ’s prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Private Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Private Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. Notwithstanding the foregoing, no certification or Opinion of Counsel described in this Section 5.02(b) shall be required in connection with the transfer, on the Closing Date, of any Residual Certificate by the Depositor to an “accredited investor” within the meaning of Rule 501(d) of the 1933 Act.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISAERISA or Section 4975 of the Code, or the Code (each, a "Plan") or (B) any Person who is acting, directly or indirectly purchasing indirectly, on behalf of any such Class Plan or interest therein on behalf ofany Person acquiring such Certificates with “Plan Assets” of a Plan within the meaning of the Department of Labor regulation promulgated at 29 C.F.R. § 2510.3-101 (“Plan Assets”), as named fiduciary of, as trustee of, or with assets certified by such transferee in the form of a PlanExhibit G, unless the prospective transferee provides the Certificate Registrar Trustee is provided with a certification of facts and an Opinion of Counsel for the benefit of the Trust Fund, the Depositor, the Trustee and the Master Servicer and on which establish they may rely, which shall be to the satisfaction effect that the purchase and holding of the Certificate Registrar that such transfer will Certificates is permissible under applicable law, shall not constitute or result in a violation of Section 406 of any non-exempt prohibited transaction under ERISA or Section 4975 of the Code or cause and shall not subject the Servicer Depositor, the Master Servicer, the Trustee or the Trustee Trust Fund to be deemed a fiduciary of such Plan any obligation or result in the imposition of an excise tax liability (including obligations or liabilities under ERISA or Section 4975 of the Code. In the absence of its having received the certification and ) in addition to those undertaken in this Agreement, which Opinion of Counsel contemplated shall not be an expense of the Depositor, the Master Servicer, the NIMS Insurer, the Trustee or the Trust Fund. Neither an Opinion of Counsel nor any certification shall be required in connection with (i) the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor, (ii) the transfer of any such Class CE, Class P or Residual Certificate to the issuer under the Indenture or the indenture trustee under the Indenture or (iii) a transfer of any such Class CE, Class P or Residual Certificate from the issuer under the Indenture or the indenture trustee under the Indenture to the Depositor or an Affiliate of the Depositor (in which case, the Depositor or any affiliate thereof shall have deemed to have represented that it is not purchasing with Plan Assets) and the Trustee shall be entitled to conclusively rely upon a representation (which, upon the request of the Trustee, shall be a written representation) from the Depositor of the status of such transferee as an affiliate of the Depositor. If any Certificate Registrar or any interest therein is acquired or held in violation of the provisions of the preceding paragraphs, the next preceding permitted beneficial owner shall require be treated as the prospective transferee beneficial owner of that Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any Class ___such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, Class ___the Master Servicer, Class ___the Trustee, Class ___the NIMS Insurer and the Trust Fund from and against any and all liabilities, Class ___ claims, costs or Class ___ Certificate to certify, and each prospective transferee expenses incurred by those parties as a result of that acquisition or holding.
(i) Each Person who has or who acquires any Class ___, Class ___, Class ___, Class ___ or Class ___ Ownership Interest in a Residual Certificate shall be deemed to have represented by its the acceptance or acquisition of such Certificate, that it is neither Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Certificate Registrar or its designee under clause (iii)(A) below to deliver payments to a Person other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to Permitted Transferee and shall promptly notify the contrary contained herein, prior to registration Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee substantially and agreement (a “Transfer Affidavit and Agreement”), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, in form and substance satisfactory to the Certificate Registrar, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it shall endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2), to the effect Certificate Registrar stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Certificate Registrar written notice that it will become insolvent is a “pass-through interest holder” within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a “pass-through interest holder.”
(ii) The Certificate Registrar shall register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Certificate Registrar as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Certificate Registrar shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Certificate Registrar shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a extent that the retroactive restoration of the rights of the Holder all payments made on of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Certificate Registrar on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Certificate Registrar. Such purchaser may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. The Holder proceeds of Residual Certificatessuch sale, by net of the commissions (which may include commissions payable to the Certificate Registrar or its acceptance thereofAffiliates), expenses and taxes due, if any, shall be deemed for all purposes remitted by the Certificate Registrar to have consented such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Trustee shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record Holders at any time any Person which is a Disqualified Organization. Reasonable compensation for providing such information may be accepted by the Trustee.
(v) The provisions of this Section 5.02 and 5.02(d) set forth prior to any amendment of this Agreement deemed necessary by counsel subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Trustee at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person will such provisions shall not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trustee, to the effect that such modification of, addition to or elimination of such provisions shall not cause any Trust Fund REMIC to cease to qualify as a REMIC and shall not cause any Trust REMIC, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon Residual Certificate to a Person that is not a Permitted Transferee. The Trustee shall forward to the Trust FundNIMS Insurer a copy of the items delivered to it pursuant to (A) and (B) above.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall authenticate and deliver, in the name of the designated transferee Transferee or transfereesTransferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of the Holder thereof, any Holder, its Certificates Certificate may be exchanged for other Certificates of authorized denominations of the same Class of with authorized denominations and a like aggregate Percentage Interest, upon surrender of the Certificates such Certificate to be exchanged at the any office or agency of the Certificate RegistrarTrustee maintained for such purpose pursuant to Section 8.12. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and cause the Certificate Registrar shall to authenticate and deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate RegistrarTrustee) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall be maintained keep at the office of or agency to be maintained in accordance with Section 12.02 a "Certificate Register" in which the Certificate Registrar a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (appoints itself to be the "Certificate Registrar" and hereby agrees to act) as Certificate Registrar transfer agent for the purpose of registering Certificates and transfers and exchanges of Certificates as herein providedprovided herein. Promptly after the Closing Date the Trustee will give the Master Servicer, in writing, the names of all Class R Certificateholders and the Trustee will give the Master Servicer, prompt written notice of any change in the Class R Certificateholders. The Certificate Registrar may appoint, by a Trustee will give prompt written instrument delivered notice to Certificateholders and the Trustee, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved Master Servicer of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth change in the Certificate RegisterRegistrar.
(b) No transfer transfer, sale, pledge or other disposition of any Class ___, R Certificate or Class ___, Class ___, Class ___, Class ___ and Class ___ B-2 Certificate or any interest therein (including any transfer by a Certificateholder of any interest in a Book-Entry Certificate) shall be made unless that such transfer is made pursuant to an effective registration statement under the Act, Securities Act and effective registration or qualification under applicable state securities laws, laws or is made in a transaction which that does not require such registration or qualification. If Until such time as the Class R Certificates or the Class B-2 Certificates shall be registered pursuant to a registration statement filed under the Securities Act, the Class R Certificates and the Class B-2 Certificates, respectively, shall bear a legend to the effect set forth in the preceding sentence. In the event that registration of a transfer is to be made without registration of a Class R Certificate or qualification and Class B-2 Certificate or any interest therein (including any transfer by a Certificateholder of any interest in a Book-Entry Certificate) is to be made in connection reliance upon the exemption from registration under the Securities Act contained in Rule 144A, such transfer shall be made only to a Qualified Institutional Buyer which is aware that the transfer of such Certificate is being made in reliance on Rule 144A and is acquiring such Certificate for its own account or for the account of a Qualified Institutional Buyer, as the case may be, and such transferee shall be deemed to have represented that the foregoing is true and correct and that such transferee understands that such Certificates have not been and will not be registered under the Securities Act and may not be reoffered, resold, pledged or otherwise transferred except (A) to a person who such transferee reasonably believes is a Qualified Institutional Buyer in a transaction meeting the requirements of Rule 144A and (B) in accordance with all applicable securities laws of the issuance or states of the United States. In the event that registration of a transfer of a Definitive Class R Certificate or Class B-2 Certificate or any interest therein (including any transfer by a Certificateholder of any interest in a Book-Entry Certificate, then ) is to be made in reliance upon an exemption from registration under the Certificate Registrar shall require, Securities Act (other than the exemption from registration contained in Rule 144A) and applicable state securities laws in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Securities Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D hereto, and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transfereethe transferee shall deliver to the Trustee, the Company and the Master Servicer an Opinion of Counsel satisfactory to the Certificate Registrar to the effect (which may be internal counsel) that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be pursuant to an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as such), (B) a certificate exemption from the Certificateholder Securities Act (other than the exemption from registration contained in Section 3(a)(2) thereof). The Holder of a Class R Certificate or a Class B-2 Certificate desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee or the Certificate Registrar is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificates under the Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ such Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such a transfer shall, and does hereby agree to, indemnify the Trustee, the Certificate Registrar Company and the Depositor Master Servicer against any liability that may result if the such transfer is not so exempt or is not made in accordance with such federal and state laws. Neither the Master Servicer, the Company, the Certificate Registrar, the Paying Agent, the Seller nor the Trustee is obligated to register the Class R Certificates or the Class B-2 Certificates under the Securities Act or under any state securities laws. Prospective transferors of Class R Certificates or Class B-2 Certificates (or Book-Entry Certificates), and prospective transferees of Certificates (or Book-Entry Certificates) that are Qualified Institutional Buyers buying Certificates in reliance upon Rule 144A may request from the Master Servicer information regarding the Trust and the Trust assets. Within five (5) Business Days of any such request, the Master Servicer shall deliver to any such prospective transferor or transferee (i) a copy of each Monthly Report delivered to Certificateholders since the first Distribution Date pursuant to Section 6.05, (ii) information relating to the Seller, the Master Servicer, the Mortgage Loans and this Agreement substantially in the form of the Prospectus dated April 8, 1997 and the Prospectus Supplement relating to the Certificates, dated July 16, 1997 and (iii) such other information as may be required to comply with Rule 144A and any interpretation thereof.
(c) None As a condition to the registration of any Transfer of any Class B-2 Certificate, the Certificates except for prospective transferee shall deliver to the Class ___, Class ___, Class ___, Class ___, or any interest therein shall be transferred to Certificate Registrar and the Trustee a certificate substantially in the form attached hereto as Exhibit O (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "PlanClass B-2 Certificate Transferee Letter") or shall supply other evidence to the same effect satisfactory to the Master Servicer.
(Bd) any Each Person who is directly has or indirectly purchasing who acquires any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result Ownership Interest in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ R Certificate shall be deemed to have represented by its the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably appointed the Master Servicer as its attorney-in-fact to negotiate the terms of any mandatory sale under clause (vi) below and to execute all instruments of transfer and to do all other things necessary in connection with any such sale, and the rights of each Person acquiring any Ownership Interest in a Class R Certificate are expressly subject to the following provisions:
(i) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall be a Permitted Transferee and shall promptly notify the Master Servicer of any change or impending change in its status as a Permitted Transferee.
(ii) No Ownership Interest in a Class R Certificate may be Transferred without the express written consent of the Master Servicer, and the Trustee shall not register the Transfer of any Class R Certificate without such consent with respect to any proposed Transfer. In connection with any proposed Transfer of any Ownership Interest in a Class R Certificate, that it is neither the Master Servicer shall, as a condition to such consent, require delivery to it, form and substance satisfactory to it, and the proposed Transferee shall deliver to the Master Servicer, the following:
(A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from (a "Transfer Affidavit") of the proposed transferee substantially Transferee, in the form attached as Exhibit F-1 L hereto, that it is not a "disqualified organization" within the meaning of Section 860E(e)(5) of the Code, and that the proposed Transferee is not acquiring its Ownership Interest in the Class R Certificate as a nominee, trustee or agent for, or for the benefit of, any Person who is not a Permitted Transferee; and
(B) an express agreement by the proposed Transferee to be bound by and to abide by the effect thatprovisions of this Section and the restrictions noted on the face of the Class R Certificates.
(iii) Notwithstanding the delivery of a Transfer Affidavit by a proposed Transferee under clause (ii) above, among other thingsif the Master Servicer has actual knowledge that the Transfer Affidavit is false, no Transfer of an Ownership Interest in a Class R Certificate to such proposed Transferee shall be effected.
(iv) Each Person holding or acquiring any Ownership Interest in a Class R Certificate shall agree (A) to require a Transfer Affidavit from any other Person to whom such transferee is not Person attempts to Transfer its Ownership Interest in a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, Class R Certificate and (B) not to Transfer its Ownership Interest in a Class R Certificate or to cause the Transfer of an Ownership Interest in a Class R Certificate to any other Person if it has actual knowledge that such transferee Transfer Affidavit is not a Non- U.S. Person, false.
(Cv) such transferee has no present knowledge Any attempted or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection purported Transfer of any tax, and (ii) Ownership Interest in a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Class R Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then shall be absolutely null and void and shall vest no rights in the prior purported Transferee. If any purported Transferee shall become a Holder of a Class R Certificate in violation of the Residual Certificate purportedly transferred shallprovisions of this Section, then, upon discovery, discovery by or due notification of the Trustee that the transfer registration of Transfer of such Residual Class R Certificate was not in fact permitted by this Section 5.02(d)Section, the last preceding Permitted Transferee shall be restored to all rights as Holder thereof retroactive to the date of the purported transferregistration of Transfer of such Class R Certificate. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Class R Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this AgreementAgreement so long as the Transfer was registered with the express prior written consent of the Master Servicer. The prior Holder Trustee shall be entitled but not obligated to recover from any purported Holder of a Residual Class R Certificate that was in fact not a permitted transferee under this Section 5.02(d) Permitted Transferee at the time it became a Holder or, at such subsequent time as it became other than a Permitted Transferee, all payments made on such Residual Class R Certificate at and after either such time. Any such payments so recovered by the Trustee shall be paid and delivered by the Trustee to the last preceding Permitted Transferee of such Certificate. The .
(vi) If any purported Transferee shall become a Holder of Residual Certificatesa Class R Certificate in violation of the restrictions in this Section, by its acceptance thereof, then the Master Servicer shall be deemed for all purposes to have consented the right without notice to the provisions Holder or any prior Holder of this Section 5.02 and such Class R Certificate, to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual sell such Class R Certificate to a Disqualified Organization purchaser selected by the Master Servicer on such terms as the Master Servicer may choose. Such purchaser may be the Master Servicer itself or any Affiliate of the Master Servicer. The proceeds of such sale, net of commissions (which may include commissions payable to the Master Servicer or its Affiliates), expenses and taxes due, if any, will be remitted by the Master Servicer to the last preceding Permitted Transferee of such Class R Certificate, except that in the event that the Master Servicer determines that the Holder or any prior Holder of such Class R Certificate may be liable for any amount due under this Section or any other provision of this Agreement, the Master Servicer may withhold a corresponding amount from such remittance as security for such claim. The terms and conditions of any sale under this clause (vi) shall be determined in the sole discretion of the Master Servicer, and it shall not be liable to any Person having an Ownership Interest in a Class R Certificate as a result of its exercise of such discretion. Upon notice to the Master Servicer that any legal or beneficial interest in any portion of a Class R Certificate has been transferred, either directly or indirectly to any person that is not a Permitted Transferee or an agent (including a broker, nominee, or middleman) of such Transferee in contravention of the foregoing restrictions, the Master Servicer agrees to furnish to the Internal Revenue Service and to the transferor of such Class R Certificate or such agent such information necessary to the application of Section 860E(e) of the Code as may be required by the Code or any regulations or administrative pronouncements thereunder, including but not limited to the present value of the total anticipated excess inclusions with respect to such Class R Certificate (or portion thereof) for periods after such transfer. At the election of the Master Servicer, the Master Servicer may charge a reasonable fee for computing and furnishing such information to the transferor or to such agent referred to above; however, the Master Servicer shall in no event be excused from furnishing such information to the Internal Revenue Service. The foregoing restrictions on transfer contained in this Section 9.02(d) shall cease to apply to Transfers occurring on or after the date on which there shall have been delivered to the Trustee, the Company and the Master Servicer, in form and substance satisfactory to the Master Servicer, an Opinion of Counsel that eliminating such restrictions will not cause the Trust Fund REMIC to cease fail to qualify as a REMIC or cause at any time while the imposition of a tax upon the Trust FundCertificates are outstanding.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holdera Certificateholder, its Certificates may be exchanged for other Certificates of the same Class of authorized denominations of the same Class of a like aggregate Percentage Interestdenomination, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrarsuch office. Whenever any Certificates are so surrendered for exchange exchange, the Company shall execute and deliver, and the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver authenticate, the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) . Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or shall be accompanied by a written instrument of transfer in the form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his or her attorney duly authorized in writing.
(hf) No service charge Except as provided in paragraph (g) below the Book-Entry Certificates shall at all times remain registered in the name of the Depository or its nominee and at all times:
(i) registration of the Offered Certificates may not be transferred by the Trustee except to another Depository; (ii) the Depository shall maintain book-entry records with respect to the Certificateholders and with respect to ownership and transfers of such Offered Certificates; (iii) ownership and transfers of registration of the Offered Certificates on the books of the Depository shall be imposed governed by applicable rules established by the Depository; (iv) the Depository may collect its usual and customary fees, charges and expenses from its Depository Participants; (v) the Trustee shall deal with the Depository, Depository Participants and indirect participating firms as representatives of the Certificateholders of the Offered Certificates for any purposes of exercising the rights of Holders under this Agreement, and requests and directions for and votes of such representatives shall not be deemed to be inconsistent if they are made with respect to different Certificateholders; and (vi) the Trustee may rely and shall be fully protected in relying upon information furnished by the Depository with respect to its Depository Participants and furnished by the Depository Participants with respect to indirect participating firms and persons shown on the books of such indirect participating firms as direct or indirect Certificateholders. All transfers by Certificateholders of Book-Entry Certificates shall be made in accordance with the procedures established by the Depository Participant or brokerage firm representing such Certificateholder. Each Depository Participant shall only transfer Book-Entry Certificates of Certificates Owners it represents or exchange of Certificatesbrokerage firms for which it acts as agent in accordance with the Depository's normal procedures.
(g) If (x)(i) the Company or the Depository advises the Trustee in writing that the Depository is no longer willing or able properly to discharge its responsibilities as Depository, but and (ii) the Trustee or the Certificate Registrar may require payment Company is unable to locate a qualified successor, or (y) the Company at its sole option advises the Trustee in writing that it elects to terminate the book-entry system through the Depository, the Trustee shall notify all Certificateholders, through the Depository, of a sum sufficient the occurrence of any such event and of the availability of definitive, fully registered Offered Certificates (the "Definitive Certificates") to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by Certificateholders requesting the Certificate Registrar and a certificate of such cancellation shall be delivered same. Upon surrender to the Trustee of the Offered Certificates by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.Depository, accompanied by registration instructions from the Depository for registration, t
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Cit Home Equity Loan Trust 1997-1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there shall be maintained at the office of the Certificate Registrar a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar may prescribe, the Certificate Registrar (located as of the Closing Date at ▇▇▇▇▇ Fargo Center, Sixth and Marquette, Minneapolis,, Minnesota 55479-0113), shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (and hereby agrees to actact in accordance with the terms hereof) as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Depositor, the Trustee, the Special Servicer and (if the Trustee is not the Certificate Registrar) the Master Servicer, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. If the Trustee resigns or is removed in accordance with the terms hereof, the successor trustee shall immediately succeed to its duties as Certificate Registrar. The Depositor, the Trustee (if it is no longer the Certificate Registrar), the Master Servicer and the Special Servicer shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register. Upon written request of any Certificateholder made for purposes of communicating with other Certificateholders with respect to their rights under this Agreement, the Certificate Registrar shall promptly furnish such Certificateholder with a list of the other Certificateholders of record identified in the Certificate Register at the time of the request.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Registered Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act, and effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If such a transfer is to be made without registration or qualification and is to be made under the Securities Act (other than in connection with the initial issuance thereof or the initial transfer of a Definitive Certificatethereof by the Depositor, the Underwriters or their respective Affiliates), then the Certificate Registrar shall requirerefuse to register such transfer unless it receives (and upon receipt, in order to assure compliance with such laws, receipt ofmay conclusively rely upon) either: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit G-1 hereto, and a certificate from such Certificateholder's prospective transferee substantially in the form attached as either Exhibit D G-2 hereto or as Exhibit G-3 hereto, and ; or (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel reasonably satisfactory to the Certificate Registrar to the effect that such transfer may be made without such registration or qualification under the Securities Act (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Master Servicer, the Special Servicer, the Trustee or the Certificate Registrar in their respective capacities as such), (Btogether with the written certification(s) a certificate as to the facts surrounding such transfer from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoon which such Opinion of Counsel is based. None of the Depositor, the Trustee or the Certificate Registrar is obligated to register or qualify the any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Registered Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder Holder of a Non-Registered Certificate desiring to effect such a transfer shall, and does hereby agree upon acquisition of such a Certificate shall be deemed to have agreed to, indemnify the Trustee, the Certificate Registrar and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws. In connection with transfer of the Non-Registered Certificates, the Depositor shall furnish upon request of a Certificateholder or Certificate Owner to such Holder or Certificate Owner and any prospective purchaser designated by such Certificateholder or Certificate Owner the information required to be delivered under paragraph (d)(4) of Rule 144A of the Securities Act. Notwithstanding the foregoing, for so long as any Non-Registered Certificate is a Book-Entry Certificate, (a) each prospective transferor of such Certificate shall be deemed to have represented to the Trustee, the Depositor and the transferee of such Certificate the information set forth on Exhibit G-1 upon or prior to such transfer and (b) each prospective transferee of such Certificate shall be deemed to have represented to the Trustee, the Depositor and the transferor of such Certificate the information set forth on Exhibit G-2 or Exhibit G-3 upon or prior to such transfer.
(c) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, an ERISA Restricted Certificate or any interest therein shall be transferred made to (A) any "employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is plan" subject to Title I of ERISA, a "plan" described by Section 4975(e)(1) of the Code or any plan subject to applicable federal, state or local law ("Similar Law") materially similar to the foregoing provisions of ERISA or the Code Code, or any entity deemed to hold plan assets of the foregoing by reason of such a plan's investment in such entity (each, a "Plan") or it is an insurance company general account which is eligible for, and satisfies all the requirements of, exemptive relief under Sections I and III of Department of Labor Prohibited Transaction Class Exemption 95-60 (B) any "PTE 95-60"). Each Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the acquires an ERISA Restricted Certificate Registrar with a certification of facts and an Opinion of Counsel which establish in Definitive Certificate form shall be required to the satisfaction of the Certificate Registrar that such transfer will not result certify in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result writing in the imposition of an excise tax under Section 4975 of form attached as Exhibit H hereto that it meets the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certifyforegoing conditions, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Person who acquires an ERISA Restricted Certificate in Book-Entry Certificate form shall be deemed to have represented by its acquisition of such Certificate, that the foregoing conditions are satisfied and that it is neither will not transfer such Certificate in violation of the foregoing.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Paying Agent under clause (ii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to have irrevocably authorized the Certificate Registrar under clause (ii)(B) below to negotiate the terms of any mandatory disposition and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained hereinfollowing provisions:
(1) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Master Servicer, prior to registration the Paying Agent and the Certificate Registrar of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(2) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Certificate Registrar shall have received (i) require delivery to it, and shall not register the Transfer of any Residual Certificate until its receipt of an affidavit from the proposed transferee and agreement substantially in the form attached hereto as Exhibit F-1 heretoI (a "Transfer Affidavit and Agreement"), from the proposed Transferee, in form and substance satisfactory to the effect Certificate Registrar, and upon which the Certificate Registrar may, in the absence of actual knowledge by a Responsible Officer of either the Trustee or the Certificate Registrar to the contrary, conclusively rely, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(3) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Certificate Registrar has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(4) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (1) to require a Transfer Affidavit and Agreement from any prospective Transferee to whom such Person attempts to transfer its Ownership Interest in such Residual Certificate and (2) not to transfer its Ownership Interest in such Residual Certificate unless it provides to the Certificate Registrar a certificate substantially in the form attached hereto as Exhibit I-2 stating that, among other things, it has no actual knowledge that such prospective Transferee is not a Permitted Transferee.
(5) Each Person holding or acquiring an Ownership Interest in a Residual Certificate, by purchasing an Ownership Interest in such Certificate, agrees to give the Master Servicer and the Trustee written notice that it is a "pass-through interest holder" within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or is holding an Ownership Interest in a Residual Certificate on behalf of, a "pass-through interest holder".
(A) such transferee is not If any purported Transferee shall become a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition Holder of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior last preceding Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate that was not in fact permitted by compliance with the provisions of this Section 5.02(d)) shall be restored, be restored to the extent permitted by law, to all rights as Holder thereof retroactive to the date of registration of such Transfer of such Residual Certificate. None of the purported transfer. The Trustee Trustee, the Master Servicer or the Certificate Registrar shall be under no any liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder thereof or for taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the restrictions in this Section 5.02(d), then, to the extent that was the retroactive restoration of the rights of the preceding Holder of such Residual Certificate as described in fact clause (ii)(A) above shall be invalid, illegal or unenforceable, the Certificate Registrar shall have the right, without notice to the Holder or any prior Holder of such Residual Certificate, to cause the transfer of such Residual Certificate to a Permitted Transferee on such terms as the Certificate Registrar may choose. Such purported Transferee shall promptly endorse and deliver such Residual Certificate in accordance with the instructions of the Certificate Registrar. Such Permitted Transferee may be the Certificate Registrar itself or any Affiliate of the Certificate Registrar. Any proceeds of such sale, net of the commissions (which may include commissions payable to the Certificate Registrar or its Affiliates), expenses and taxes due, if any, will be remitted by the Paying Agent to such purported Transferee. The terms and conditions of any sale under this clause (ii)(B) shall be determined in the sole discretion of the Certificate Registrar, and the Certificate Registrar shall not be liable to any Person having an Ownership Interest in a permitted transferee under Residual Certificate as a result of its exercise of such discretion.
(iii) The Certificate Registrar shall make available to the Internal Revenue Service and to those Persons specified by the REMIC Provisions any information available to it which is necessary to compute any tax imposed as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization or agent thereof, including the information described in Treasury Regulations Sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the "excess inclusions" of such Residual Certificate, and the Master Servicer and the Special Servicer shall furnish to the Certificate Registrar all information in its possession necessary for the Certificate Registrar to discharge such obligation. The transferor of such Ownership Interest shall be responsible for the reasonable compensation of the Certificate Registrar, the Master Servicer and the Special Servicer for providing such information.
(iv) The provisions of this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificatesset forth prior to this clause (iv) may be modified, by its acceptance thereofadded to or eliminated, provided that there shall be deemed for all purposes to have consented been delivered to the provisions of this Section 5.02 Certificate Registrar and the Master Servicer the following:
(1) written confirmation from each Rating Agency to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure effect that the transfer modification of, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to qualify, downgrade or withdraw its then-current rating of any Class of Certificates; and
(2) an Opinion of Counsel, in form and substance satisfactory to the Certificate Registrar and the Master Servicer, obtained at the expense of the party seeking such modification of, addition to or elimination of such provisions (but in no event at the expense of the Trust Fund Fund), to the effect that doing so will not cause either REMIC I or REMIC II to (x) cease to qualify as a REMIC or (y) be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person which is not a Permitted Transferee, or cause a Person other than the imposition prospective Transferee to be subject to a REMIC-related tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsectionsprovisions of this Section 5.02, upon surrender for registration of transfer of any Certificate at the office offices of the Certificate RegistrarRegistrar maintained for such purpose, the Trustee or Certificate Registrar shall execute and the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office offices of the Certificate RegistrarRegistrar maintained for such purpose. Whenever any Certificates are so surrendered for exchange exchange, the Trustee or Certificate Registrar shall execute and the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Union Com Mor Sec Inc Com Mor Pass THR Cer Ser 2001-C1)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there shall be maintained at the office of the Certificate Registrar a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar may prescribe, the Certificate Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (and hereby agrees to actact in accordance with the terms 143 hereof) as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeDepositor, the Master Servicer and the Special Servicer, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. If the Trustee resigns or is removed in accordance with the terms hereof, the successor trustee shall immediately succeed to its predecessor's duties as Certificate Registrar. The Depositor, the Master Servicer and the Special Servicer, shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Registered Certificate shall be made unless that such transfer is made pursuant to an effective registration statement under the Securities Act, and effective registration or qualification under applicable state securities laws, or is made to a Qualified Institutional Buyer in accordance with Rule 144A promulgated under the Securities Act in a transaction which that does not require such registration or qualification. If such a transfer is to be made without registration under the Securities Act, other than a transfer by the Depositor or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificatean Affiliate thereof, then the Certificate Registrar Trustee shall require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D hereto, by it and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as such), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C B-1 hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E B-2 hereto. Notwithstanding the foregoing, transfers of a beneficial interest in any Class (or portion thereof) of Non-Registered Certificates (other than the Residual Certificates) in accordance with the rules and procedures of the Depository applicable to transfers by its respective participants will be permitted if such transfer is made to a Qualified Institutional Buyer in accordance with Rule 144A promulgated under the Securities Act. None of the Depositor, the Trustee or the Certificate Registrar is obligated to register or qualify the any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Registered Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder Holder of a Non-Registered Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the TrusteeDepositor, the Trustee and the Certificate Registrar and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(ci) None No transfer of the Certificates except for the a Senior Certificate or a Class ___B, Class ___C, Class ___D, Class ___E, Class F, Class G or Class H Certificate or any interest therein shall be transferred to made (A) to any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns ▇▇ plans and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, ERISA or Section 4975 of the Code (each, a "Plan") ), or (B) to any Person who is directly or indirectly purchasing any such Class Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets "plan assets" of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification (1) such Plan qualifies as an accredited investor as defined in Rule 501(a)(1) of facts and an Opinion of Counsel which establish to the satisfaction Regulation D of the Certificate Registrar that Securities Act at the time of such transfer will not result transfer, such Certificates continue to be rated in a violation of Section 406 of ERISA or Section 4975 one of the Code top four rating categories by at least one Rating Agency or cause (2) such Plan is an "insurance company general account" (within the Servicer or meaning of PTCE 95-60 (as defined below)) and the Trustee to be deemed a fiduciary conditions set forth in Sections I and III of PTCE 95-60 have been satisfied as of the date of acquisition of such Certificate. Each purchaser or transferee that is a Plan or result in the imposition is investing on behalf of an excise tax under Section 4975 or with "plan assets" of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall a Plan will be deemed to have represented by its acquisition that the foregoing conditions have been satisfied.
(ii) No transfer of such Certificate, that it is neither a Residual Certificate or any interest therein shall be made (A) a to any Plan nor or (B) a to any Person who is directly or indirectly purchasing any such Class Certificates Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets "plan assets" of a Plan. - 119 - 126
(d) No transfer of a Class J, Class K, Class L, Class M, Class N, Class O, Class P or Class Q Certificate or any Residual Certificate interest therein shall be made (A) to any Plan or (B) to any Person who is directly or indirectly purchasing such Certificate or interest therein on behalf of, as named fiduciary of, as trustee of, or with "plan assets" of a Non-U.S. Person. Notwithstanding anything Plan unless the prospective transferee of any such Certificate or any interest therein provides a certification of facts to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual CertificateDepositor, the Certificate Registrar shall have received (i) an affidavit from Master Servicer and the proposed transferee Trustee substantially in the form attached as Exhibit F-1 hereto, to the effect thatthat (or, among other things, (A) if such transferee Certificate is not a Disqualified Organization or an agent (including a brokerin certificated form, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, represent that) the receipt of distributions in respect purchase of such Residual Certificate. If Certificate by or on behalf of, or with "plan assets" of, any purported transfer of a Residual Certificate shall be Plan is permissible under applicable law, will not constitute or result in violation any non-exempt prohibited transaction under ERISA or Section 4975 of the provisions of this Section 5.02(d)Code, then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause subject the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate RegistrarDepositor, the Trustee or the Authenticating Agent shall execute and authenticate Master Servicer to any obligation in addition to those undertaken herein, and the Certificate Registrar shall deliver, following conditions are met: (1) such Plan qualifies as an accredited investor as defined in the name Rule 501(a)(1) of Regulation D of the designated transferee or transfereesSecurities Act, one or more new Certificates (2) the source of funds used to purchase such Certificate is an "insurance company general account" (as such term is defined in United States Department of Labor Prohibited Transaction Class Exemption 95-60 ("PTCE 95-60")) and (3) the conditions set forth in Sections I and III of PTCE 95-60 have been satisfied as of the same Class date of the acquisition of such Certificates. Any purchaser of a like aggregate Percentage Interest.
Class J, Class K, Class L, Class M, Class N, Class O, Class P or Class Q Certificate or any interest therein will be deemed to have represented by such purchase that either (fa) At such purchaser is not a Plan and is not purchasing such Certificates by or on behalf of, or with "plan assets" of, any Plan or (b) the option purchase of any Holdersuch Certificate by or on behalf of, its Certificates may be exchanged for other Certificates of authorized denominations or with "plan assets" of, any Plan is permissible under applicable law, will not result in any non-exempt prohibited transaction under ERISA or Section 4975 of the same Class of a like aggregate Percentage InterestCode, upon surrender of and will not subject the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange Depositor, the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate Master Servicer to any obligation in addition to those undertaken herein, and the following conditions are met: (i) such Plan qualifies as an accredited investor as defined in Rule 501(a)(1) of Regulation D of the Securities Act, (ii) the source of funds used to purchase such Certificate Registrar shall deliver is an "insurance company general account" (as such term is defined in PTCE 95-60) and (iii) the Certificates which conditions set forth in Sections I and III of PTCE 95-60 have been satisfied as of the Certificateholder making date of the exchange acquisition of such Certificates. The Trustee may require that any prospective transferee of a Certificate that is entitled held as a Definitive Certificate provide such certifications as the Trustee may deem desirable or necessary in order to receive.
(g) Every establish that such transferee or the Person in whose name such registration is requested is not a Plan or a Person who is directly or indirectly purchasing such Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed byon behalf of, as named fiduciary of, as trustee of, or be accompanied by with "plan assets" of a written instrument Plan or that the conditions of an acceptable alternative have been satisfied. The Trustee shall not have any responsibility to monitor or restrict the transfer of Ownership Interests in any Certificates that are in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of CertificatesBook-Entry Certificate.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there shall be maintained at the office of the Certificate Registrar a Certificate Register in which, subject to such reasonable regulations as the Certificate Registrar may prescribe, the Certificate Registrar shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby initially appointed (and hereby agrees to actact in accordance with the terms hereof) as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeDepositor, the Master Servicer and the Special Servicer, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. If 141 the Trustee resigns or is removed in accordance with the terms hereof, the successor trustee shall immediately succeed to its predecessor's duties as Certificate Registrar. The Depositor, the Master Servicer and the Special Servicer, shall have the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Registered Certificate shall be made unless that such transfer is made pursuant to an effective registration statement under the Securities Act, and effective registration or qualification under applicable state securities laws, or is made to a Qualified Institutional Buyer in accordance with Rule 144A promulgated under the Securities Act in a transaction which that does not require such registration or qualification. If such a transfer is to be made without registration under the Securities Act, other than a transfer by the Depositor or qualification and is to be made in connection with the issuance or transfer of a Definitive Certificatean Affiliate thereof, then the Certificate Registrar Trustee shall require, in order to assure compliance with such laws, receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate from the prospective transferee substantially in the form attached as Exhibit D hereto, by it and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Servicer, the Trustee or the Certificate Registrar in their respective capacities as such), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C B-1 hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E B-2 hereto. Notwithstanding the foregoing, transfers of a beneficial interest in any Class (or portion thereof) of Non-Registered Certificates (other than the Residual Certificates) in accordance with the rules and procedures of the Depository applicable to transfers by its respective participants will be permitted if such transfer is made to a Qualified Institutional Buyer in accordance with Rule 144A promulgated under the Securities Act. None of the Depositor, the Trustee or the Certificate Registrar is obligated to register or qualify the any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ of Non-Registered Certificates under the Securities Act or any other securities law or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Registered Certificate without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder Holder of a Non-Registered Certificate desiring to effect such a transfer shall, and does hereby agree to, indemnify the TrusteeDepositor, the Trustee and the Certificate Registrar and the Depositor against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(c) None of the Certificates except for the Class ___, Class ___, Class ___, Class ___, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code or cause the Servicer or the Trustee to be deemed a fiduciary of such Plan or result in the imposition of an excise tax under Section 4975 of the Code. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Gmac Commercial Mortgage Securities Inc)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Securities Administrator shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Securities Administrator in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Securities Administrator shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby Securities Administrator will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the Master Servicer, the Seller, the Servicer, the Trustee, the Securities Administrator and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Securities Administrator shall at any time not be the Certificate Registrar, the Securities Administrator shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “1933 Act”), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Non-Offered Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of any such Certificate by the Depositor to the Seller or by the Seller to an affiliate of the Seller or to a Definitive Certificatetrust, then the depositor of which is an affiliate of the Depositor or the Seller), the Master Servicer, the Securities Administrator and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: either (i) if such transfer is purportedly being made in reliance upon Rule 144A under the Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder’s prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, and F-1 or (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of Depositor, the DepositorSeller, the Trustee, the Servicer, the Trustee or Master Servicer, the Securities Administrator, the Certificate Registrar in their respective capacities as suchor the Trust Fund), (B) a certificate from the Certificateholder desiring to effect such transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from such Certificateholder's prospective transferee substantially in the form attached as Exhibit E hereto. None of the Depositor, the Trustee Seller, the Certificate Registrar, the Securities Administrator or the Certificate Registrar Trustee is obligated to register or qualify the Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Non-Offered Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Private Certificate shall, and does hereby agree to, indemnify the Trustee, the Seller, the Depositor, the Certificate Registrar Registrar, the Securities Administrator, the Master Servicer and the Depositor Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(ci) None No transfer of an ERISA-Restricted Certificate shall be made unless the Securities Administrator shall have received in the form attached hereto as Exhibit F-2 or Exhibit G, as applicable, either (i) a certification letter from the transferee of such Certificate, acceptable to and in form and substance satisfactory to the Securities Administrator, to the effect that such transferee is not a Plan or a person using the assets of any such Plan, which representation letter shall not be an expense of the Securities Administrator or the Trust Fund, (ii) if the purchaser is an insurance company and the Certificate has been the subject of an ERISA-Qualifying Underwriting, a representation that the purchaser is an insurance company which is purchasing such Certificates except with funds contained in an “insurance company general account” (as such term is defined in Section V(e) of Prohibited Transaction Class Exemption 95-60 (“PTCE 95-60”)) and that the purchase and holding of such Certificates are covered under Sections I and III of PTCE 95-60 or (iii) in the case of any such Certificate presented for registration in the Class ___, Class ___, Class ___, Class ___name of a Plan or a person acting on behalf of any such Plan, or any interest therein shall be transferred to (A) any employee benefit plan or other retirement arrangementusing such Plan’s assets, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish satisfactory to the satisfaction Securities Administrator to the effect that the purchase or holding of the such Certificate Registrar that such transfer will not result in a violation of prohibited transactions under Section 406 of ERISA or and/or Section 4975 of the Code or cause and will not subject the Depositor, the Seller, the Trustee, the Securities Administrator, the Servicer or the Trustee Master Servicer to any obligation in addition to those undertaken in this Agreement, which Opinion of Counsel shall not be deemed a fiduciary an expense of such Plan parties or result in the imposition of an excise tax under Section 4975 of the CodeTrust Fund. In the absence event the representations referred to in the preceding sentence are not furnished, such representations shall be deemed to have been made to the Securities Administrator by the transferee’s acceptance of its having received an ERISA-Restricted Certificate, or by any beneficial owner who purchases an interest in such Certificate in book-entry form. In the certification event that a representation is violated, or any attempt to transfer an ERISA-Restricted Certificate to a Plan, or a person using a Plan’s assets is attempted without the delivery to the Securities Administrator of the opinion of counsel described above, the attempted transfer or acquisition of such Certificate shall be void and of no effect. Neither an Opinion of Counsel contemplated nor any certification will be required in connection with the initial transfer of any such Certificate by the preceding sentenceDepositor to an affiliate of the Depositor (in which case, the Certificate Registrar shall require the prospective transferee of Depositor, or any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate affiliate thereof shall be deemed to have represented by its acquisition that such affiliate is not a Plan or a Person investing Plan Assets) and the Securities Administrator shall be entitled to conclusively rely upon a representation (which, upon the request of the Securities Administrator, shall be a written representation) from the Depositor of the status of such Certificatetransferee as an affiliate of the Depositor.
(ii) [Reserved].
(iii) If any Certificate or any interest therein is acquired or held in violation of the provisions of Section 5.02(c)(i), the next preceding permitted beneficial owner will be treated as the beneficial owner of that it is neither Certificate retroactive to the date of transfer to the purported beneficial owner. Any purported beneficial owner whose acquisition or holding of any such Certificate or interest therein was effected in violation of the provisions of the preceding paragraph shall indemnify and hold harmless the Depositor, the Servicer, the Seller, the Trustee, the Master Servicer, the Securities Administrator, the Certificate Registrar, the Underwriters and the Trust Fund from and against any and all liabilities, claims, costs or expenses incurred by those parties as a result of that acquisition or holding.
(Ai) a Plan nor (B) a Each Person who is directly has or indirectly purchasing who acquires any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of Ownership Interest in a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made deemed by the acceptance or acquisition of such Ownership Interest to have agreed to be bound by the following provisions and to have irrevocably authorized the Securities Administrator or its designee under clause (iii)(A) below to deliver payments to a Non-U.S. PersonPerson other than such Person and to negotiate the terms of any mandatory sale under clause (iii)(B) below and to execute all instruments of Transfer and to do all other things necessary in connection with any such sale. Notwithstanding anything The rights of each Person acquiring any Ownership Interest in a Residual Certificate are expressly subject to the contrary contained herein, prior to registration following provisions:
(A) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall be a Permitted Transferee and shall promptly notify the Securities Administrator of any transfer, sale change or other disposition impending change in its status as a Permitted Transferee.
(B) In connection with any proposed Transfer of any Ownership Interest in a Residual Certificate, the Securities Administrator shall require delivery to it and shall not register the Transfer of any Residual Certificate Registrar shall have received (i) until its receipt of an affidavit from the proposed transferee substantially and agreement (a “Transfer Affidavit and Agreement”), in the form attached hereto as Exhibit F-1 heretoF-2 from the proposed Transferee, representing and warranting, among other things, that such Transferee is a Permitted Transferee, that it is not acquiring its Ownership Interest in the Residual Certificate that is the subject of the proposed Transfer as a nominee, trustee or agent for any Person that is not a Permitted Transferee, that for so long as it retains its Ownership Interest in a Residual Certificate, it will endeavor to remain a Permitted Transferee, and that it has reviewed the provisions of this Section 5.02(d) and agrees to be bound by them.
(C) Notwithstanding the delivery of a Transfer Affidavit and Agreement by a proposed Transferee under clause (B) above, if a Responsible Officer of the Securities Administrator who is assigned to this transaction has actual knowledge that the proposed Transferee is not a Permitted Transferee, no Transfer of an Ownership Interest in a Residual Certificate to such proposed Transferee shall be effected.
(D) Each Person holding or acquiring any Ownership Interest in a Residual Certificate shall agree (x) to require a Transfer Affidavit and Agreement in the form attached hereto as Exhibit F-2) from any other Person to whom such Person attempts to transfer its Ownership Interest in a Residual Certificate and (y) not to transfer its Ownership Interest unless it provides a Transferor Affidavit (in the form attached hereto as Exhibit F-2) to the effect Securities Administrator stating that, among other things, (A) it has no actual knowledge that such transferee other Person is not a Disqualified Organization Permitted Transferee.
(E) Each Person holding or acquiring an agent (including Ownership Interest in a brokerResidual Certificate, nominee or middleman) of a Disqualified Organizationby purchasing an Ownership Interest in such Certificate, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation agrees to give the Securities Administrator written notice that it will become insolvent is a “pass-through interest holder” within the meaning of temporary Treasury regulation Section 1.67-3T(a)(2)(i)(A) immediately upon acquiring an Ownership Interest in a Residual Certificate, if it is, or subject to is holding an Ownership Interest in a bankruptcy proceeding for so long as the Residual Certificate remains outstandingon behalf of, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and a “pass-through interest holder.”
(ii) The Securities Administrator will register the Transfer of any Residual Certificate only if it shall have received the Transfer Affidavit and Agreement and all of such other documents as shall have been reasonably required by the Securities Administrator as a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, condition to the effect that, among other thingssuch registration. In addition, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer Transfer of a Residual Certificate shall be made unless the Securities Administrator shall have received a representation letter from the Transferee of such Certificate to the effect that such Transferee is a Permitted Transferee.
(A) If any purported Transferee shall become a Holder of a Residual Certificate in violation of the provisions of this Section 5.02(d), then the prior Holder of last preceding Permitted Transferee shall be restored, to the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact extent permitted by this Section 5.02(d)law, be restored to all rights as Holder holder thereof retroactive to the date of the purported transferregistration of such Transfer of such Residual Certificate. The Trustee Securities Administrator shall be under no liability to any Person for any registration of transfer Transfer of a Residual Certificate that is in fact not permitted by this Section 5.02(d) or for making any payments due on such Residual Certificate to the purported Holder holder thereof or for taking any other action with respect to such purported Holder holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from .
(B) If any purported Holder Transferee shall become a holder of a Residual Certificate that was in fact not a permitted transferee under violation of the restrictions in this Section 5.02(d) at and to the time it became a Holder all payments made on extent that the retroactive restoration of the rights of the holder of such Residual Certificate as described in clause (iii)(A) above shall be invalid, illegal or unenforceable, then the Securities Administrator shall have the right, without notice to the holder or any prior holder of such Residual Certificate, to sell such Residual Certificate to a purchaser selected by the Master Servicer on such terms as the Securities Administrator may choose. Such purported Transferee shall promptly endorse and deliver each Residual Certificate in accordance with the instructions of the Securities Administrator. Such purchaser may be the Securities Administrator itself or any Affiliate of the Securities Administrator. The Holder proceeds of Residual Certificatessuch sale, net of the commissions (which may include commissions payable to the Securities Administrator or its Affiliates), expenses and taxes due, if any, will be remitted by its acceptance thereof, the Securities Administrator to such purported Transferee. The terms and conditions of any sale under this clause (iii)(B) shall be deemed for all purposes determined in the sole discretion of the Securities Administrator, and the Securities Administrator shall not be liable to have consented any Person having an Ownership Interest in a Residual Certificate as a result of its exercise of such discretion.
(iv) The Securities Administrator shall make available to the Internal Revenue Service and those Persons specified by the REMIC Provisions all information necessary to compute any tax imposed (A) as a result of the Transfer of an Ownership Interest in a Residual Certificate to any Person who is a Disqualified Organization, including the information described in Treasury regulations sections 1.860D-1(b)(5) and 1.860E-2(a)(5) with respect to the “excess inclusions” of such Residual Certificate and (B) as a result of any regulated investment company, real estate investment trust, common trust fund, partnership, trust, estate or organization described in Section 1381 of the Code that holds an Ownership Interest in a Residual Certificate having as among its record holders at any time any Person which is a Disqualified Organization. Such information shall be provided by the Securities Administrator upon receipt of reasonable compensation.
(v) The provisions of this Section 5.02 5.02(d) set forth prior to this subsection (v) may be modified, added to or eliminated, provided that there shall have been delivered to the Securities Administrator and to any amendment of this Agreement deemed necessary by counsel the Certificate Registrar at the expense of the Depositor party seeking to ensure modify, add to or eliminate any such provision the following:
(A) written notification from each Rating Agency to the effect that the transfer modification, addition to or elimination of a Residual Certificate to a Disqualified Organization or any other Person such provisions will not cause such Rating Agency to downgrade its then-current ratings of any Class of Certificates; and
(B) an Opinion of Counsel, in form and substance satisfactory to the Trust Fund Securities Administrator and the Certificate Registrar, to the effect that such modification of, addition to or elimination of such provisions will not cause any REMIC created hereunder to cease to qualify as a REMIC and will not cause any REMIC created hereunder, as the case may be, to be subject to an entity-level tax caused by the Transfer of any Residual Certificate to a Person that is not a Permitted Transferee or cause (y) a Person other than the imposition prospective transferee to be subject to a REMIC-tax caused by the Transfer of a tax upon the Trust FundResidual Certificate to a Person that is not a Permitted Transferee.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Encore Credit Receivables Trust 2005-4)
Registration of Transfer and Exchange of Certificates. (a) At all times during the term of this Agreement, there The Trustee shall cause to be maintained kept at the office one of the Certificate Registrar offices or agencies to be appointed by the Trustee in accordance with the provisions of Section 8.12 a Certificate Register for the Certificates in which, subject to such reasonable regulations as the Certificate Registrar it may prescribe, the Certificate Registrar Trustee shall provide for the registration of Certificates and of transfers and exchanges of Certificates as herein provided. The Trustee is hereby will initially appointed (and hereby agrees to act) serve as Certificate Registrar for the purpose of registering Certificates and transfers and exchanges of Certificates as herein provided. The Certificate Registrar may appoint, by a written instrument delivered to the TrusteeMaster Servicer and the Depositor, any other bank or trust company to act as Certificate Registrar under such conditions as the predecessor Certificate Registrar may prescribe, provided that the predecessor Certificate Registrar shall not be relieved of any of its duties or responsibilities hereunder by reason of such appointment. The Master Servicer If the Trustee shall at any time not be the Certificate Registrar, the Trustee shall have and maintain the right to inspect the Certificate Register or to obtain a copy thereof at all reasonable - 118 - 125 times, and to rely conclusively upon a certificate of the Certificate Registrar as to the information set forth in the Certificate Register.
(b) No transfer of any Class ___CE Certificate, Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificate or Residual Certificate shall be made unless that transfer is made pursuant to an effective registration statement under the Securities Act of 1933, as amended (the "1933 Act"), and an effective registration or qualification under applicable state securities laws, or is made in a transaction which that does not require such registration or qualification. If In the event that such a transfer of a Class CE Certificate, Class P Certificate or Residual Certificate is to be made without registration or qualification and is to be made (other than in connection with the issuance or initial transfer of a Definitive Certificateany such Certificate by the Depositor to an affiliate of the Depositor), then the Trustee and the Certificate Registrar shall require, in order to assure compliance with such laws, each require receipt of: (i) if such transfer is purportedly being made in reliance upon Rule 144A under the 1933 Act, a certificate written certifications from the Certificateholder desiring to effect the transfer and from such Certificateholder's prospective transferee transferee, substantially in the form forms attached hereto as Exhibit D hereto, F-1; and (ii) in all other cases, (A) except where the Depositor or an Affiliate thereof is the transferor or transferee, an Opinion of Counsel satisfactory to the Certificate Registrar to the effect it that such transfer may be made without such registration or qualification (which Opinion of Counsel shall not be an expense of the Trust Fund or of the Depositor, the Trustee, the Master Servicer, the Trustee in its capacity as such, or the Certificate Registrar in their respective capacities as suchTrust Fund), (Btogether with copies of the written certification(s) a certificate from of the Certificateholder desiring to effect such the transfer substantially in the form attached as Exhibit C hereto and (C) a certificate from and/or such Certificateholder's prospective transferee substantially in the form attached as Exhibit E heretoupon which such Opinion of Counsel is based, if any. None of the Depositor, the Trustee Certificate Registrar or the Certificate Registrar Trustee is obligated to register or qualify the Class ___CE Certificates, the Class ___, Class ___, Class ___, Class ___ and Class ___ P Certificates or the Residual Certificates under the 1933 Act or any other securities law laws or to take any action not otherwise required under this Agreement to permit the transfer of any Class ___, Class ___, Class ___, Class ___, Class ___ and Class ___ Certificate such Certificates without registration or qualification. Any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificateholder desiring to effect such the transfer of a transfer Class CE Certificate, a Class P Certificate or a Residual Certificate shall, and does hereby agree to, indemnify the Trustee, the Depositor, the Certificate Registrar and the Depositor Master Servicer against any liability that may result if the transfer is not so exempt or is not made in accordance with such federal and state laws.
(ci) None No transfer of the Certificates except for the Class ___, Class ___, Class ___, Class ___, a Mezzanine Certificate or any interest therein shall be transferred made to (A) any employee benefit plan or other retirement arrangement, including individual retirement accounts and annuities, Keog▇ ▇▇▇ns and collective investment funds and separate accounts in which such plans, accounts or arrangements are invested, that is Plan subject to ERISA, or the Code (each, a "Plan") or (B) any Person who is directly or indirectly purchasing any such Class or interest therein on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan, unless the prospective transferee provides the Certificate Registrar with a certification of facts and an Opinion of Counsel which establish to the satisfaction of the Certificate Registrar that such transfer will not result in a violation of Section 406 of ERISA or Section 4975 of the Code Code, any Person acting, directly or cause the Servicer or the Trustee to be deemed a fiduciary indirectly, on behalf of any such Plan or result in any Person acquiring such Certificates with "Plan Assets" of a Plan within the imposition of an excise tax under Section 4975 meaning of the CodeDepartment of Labor regulation promulgated at 29 C.F.R. ss. In the absence of its having received the certification and Opinion of Counsel contemplated by the preceding sentence, the Certificate Registrar shall require the prospective transferee of any Class ___, Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate to certify, and each prospective transferee of any Class ___, Class ___, Class ___, Class ___ or Class ___ Certificate shall be deemed to have represented by its acquisition of such Certificate, that it is neither (A) a Plan nor (B) a Person who is directly or indirectly purchasing any such Class Certificates on behalf of, as named fiduciary of, as trustee of, or with assets of a Plan. - 119 - 126
(d) No transfer of any Residual Certificate shall be made to a Non2510.3-U.S. Person. Notwithstanding anything to the contrary contained herein, prior to registration of any transfer, sale or other disposition of a Residual Certificate, the Certificate Registrar shall have received (i) an affidavit from the proposed transferee substantially in the form attached as Exhibit F-1 hereto, to the effect that, among other things, (A) such transferee is not a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization, (B) such transferee is not a Non- U.S. Person, (C) such transferee has no present knowledge or expectation that it will become insolvent or subject to a bankruptcy proceeding for so long as the Residual Certificate remains outstanding, and (D) no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax, and (ii) a certificate from the transferor substantially in the form attached as Exhibit F-2 hereto, to the effect that, among other things, no purpose of such proposed transfer, sale or other disposition of the Residual Certificate is or will be to impede the assessment or collection of any tax. Notwithstanding the registration in the Certificate Register of any transfer, sale or other disposition of a Residual Certificate to a Disqualified Organization or an agent (including a broker, nominee or middleman) of a Disqualified Organization or to a Non-U.S. Person, such registration shall be deemed to be of no legal force or effect whatsoever and such Person shall not be deemed to be a Certificateholder for any purpose hereunder, including, but not limited to, the receipt of distributions in respect of such Residual Certificate. If any purported transfer of a Residual Certificate shall be in violation of the provisions of this Section 5.02(d), then the prior Holder of the Residual Certificate purportedly transferred shall, upon discovery, that the transfer of such Residual Certificate was not in fact permitted by this Section 5.02(d), be restored to all rights as Holder thereof retroactive to the date of the purported transfer. The Trustee shall be under no liability to any Person for any registration of transfer of a Residual Certificate that is not permitted by this Section 5.02(d) or for making payments due on such Residual Certificate to the purported Holder thereof or taking any other action with respect to such purported Holder under the provisions of this Agreement. The prior Holder shall be entitled to recover from any purported Holder of a Residual Certificate that was in fact not a permitted transferee under this Section 5.02(d) at the time it became a Holder all payments made on such Residual Certificate. The Holder of Residual Certificates, by its acceptance thereof, shall be deemed for all purposes to have consented to the provisions of this Section 5.02 and to any amendment of this Agreement deemed necessary by counsel of the Depositor to ensure that the transfer of a Residual Certificate to a Disqualified Organization or any other Person will not cause the Trust Fund to cease to qualify as a REMIC or cause the imposition of a tax upon the Trust Fund.
(e) Subject to the preceding subsections, upon surrender for registration of transfer of any Certificate at the office of the Certificate Registrar, the Trustee or the Authenticating Agent shall execute and authenticate and the Certificate Registrar shall deliver, in the name of the designated transferee or transferees, one or more new Certificates of the same Class of a like aggregate Percentage Interest.
(f) At the option of any Holder, its Certificates may be exchanged for other Certificates of authorized denominations of the same Class of a like aggregate Percentage Interest, upon surrender of the Certificates to be exchanged at the office of the Certificate Registrar. Whenever any Certificates are so surrendered for exchange the Trustee or the Authenticating Agent shall execute - 120 - 127 and authenticate and the Certificate Registrar shall deliver the Certificates which the Certificateholder making the exchange is entitled to receive.
(g) Every Certificate presented or surrendered for transfer or exchange shall (if so required by the Certificate Registrar) be duly endorsed by, or be accompanied by a written instrument of transfer in the form satisfactory to the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
(h) No service charge shall be imposed for any transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange of Certificates.
(i) All Certificates surrendered for transfer and exchange shall be physically canceled by the Certificate Registrar and a certificate of such cancellation shall be delivered to the Trustee by the Certificate Registrar. The Certificate Registrar shall hold such canceled Certificates in accordance with its standard procedures.101
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Floating Rate Mort Pass Through Cert Series 2000-1)