CWALT, INC. as Depositor WILMINGTON TRUST COMPANY, as Owner Trustee and THE BANK OF NEW YORK, as Certificate Registrar and Certificate Paying Agent AMENDED AND RESTATED TRUST AGREEMENT Dated as of June 23, 2006 GSC Capital Corp. Mortgage Trust 2006-2...
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CWALT,
INC.
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as
Depositor
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WILMINGTON
TRUST COMPANY,
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as
Owner Trustee
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and
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THE
BANK OF NEW YORK,
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as
Certificate Registrar and Certificate Paying Agent
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AMENDED
AND RESTATED
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Dated
as of June 23, 2006
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Alternative
Loan Trust Notes, Series 2006-2
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Table
of Contents
Section
ARTICLE
I
Definitions
Section
1.01. Definitions
Section
1.02. Other
Definitional Provisions.
ARTICLE
II
Organization
Section
2.01. Name
Section
2.02. Office
Section
2.03. Purposes
and Powers
Section
2.04. Appointment
of Owner Trustee
Section
2.05. Initial
Capital Contribution of Trust Estate
Section
2.06. Declaration
of Trust
Section
2.07. Liability
of the Holders of the Certificates
Section
2.08. Title
to
Trust Property
Section
2.09. Situs
of
Trust
Section
2.10. Representations
and Warranties of the Depositor
Section
2.11. Payment
of Trust Fees
Section
2.12. Investment
Company
Section
2.13. Transfer
of Trust Estate to Owner Trustee
ARTICLE
III
Conveyance
of the Mortgage Loans; Certificates
Section
3.01. Conveyance
of the Mortgage Loans
Section
3.02. Initial
Ownership
Section
3.03. The
Certificates
Section
3.04. Authentication
of Certificates
Section
3.05. Registration
of and Limitations on Transfer and Exchange of Certificates
Section
3.06. Mutilated,
Destroyed, Lost or Stolen Certificates
Section
3.07. Persons
Deemed Certificateholders
Section
3.08. Access
to
List of Certificateholders' Names and Addresses
Section
3.09. Maintenance
of Office or Agency
Section
3.10. Certificate
Paying Agent
ARTICLE
IV
Authority
and Duties of Owner Trustee
Section
4.01. General
Authority
Section
4.02. General
Duties
Section
4.03. Action
upon Instruction
Section
4.04. No
Duties
Except as Specified under Specified Documents or in Instructions
Section
4.05. Restrictions
Section
4.06. Prior
Notice to Certificateholders with Respect to Certain Matters
Section
4.07. Action
by
Certificateholders with Respect to Certain Matters
Section
4.08. Action
by
Certificateholders with Respect to Bankruptcy
Section
4.09. Restrictions
on Certificateholders' Power
Section
4.10. Majority
Control
Section
4.11. Optional
Redemption
ARTICLE
V
Application
of Trust Funds
Section
5.01. Distributions
Section
5.02. Method
of
Payment
Section
5.03. Tax
Returns
Section
5.04. Statements
to Certificateholders
ARTICLE
VI
Concerning
the Owner Trustee
Section
6.01. Acceptance
of Trusts and Duties
Section
6.02. Furnishing
of Documents
Section
6.03. Representations
and Warranties
Section
6.04. Reliance;
Advice of Counsel
Section
6.05. Not
Acting in Individual Capacity
Section
6.06. Owner
Trustee Not Liable for Certificates or Related Documents
Section
6.07. Owner
Trustee May Own Certificates and Notes
Section
6.08. Payments
from Trust Estate
Section
6.09. Doing
Business in Other Jurisdictions
Section
6.10. Liability
of Certificate Registrar and Certificate Paying Agent
Section
6.11. Derivative
Contracts.
ARTICLE
VII
Compensation
of Owner Trustee
Section
7.01. Owner
Trustee's Fees and Expenses
Section
7.02. Indemnification
ARTICLE
VIII
Termination
of Trust Agreement
Section
8.01. Termination
of Trust Agreement
ARTICLE
IX
Successor
Owner Trustees and Additional Owner Trustees
Section
9.01. Eligibility
Requirements for Owner Trustee
Section
9.02. Replacement
of Owner Trustee
Section
9.03. Successor
Owner Trustee
Section
9.04. Merger
or
Consolidation of Owner Trustee
Section
9.05. Appointment
of Co-Trustee or Separate Trustee
ARTICLE
X
Miscellaneous
Section
10.01. Amendments
Section
10.02. No
Legal
Title to Trust Estate
Section
10.03. Limitations
on Rights of Others
Section
10.04. Notices
Section
10.05. Severability
Section
10.06. Separate
Counterparts
Section
10.07. Successors
and Assigns
Section
10.08. No
Petition
Section
10.09. No
Recourse
Section
10.10. Headings
Section
10.11. GOVERNING
LAW
Section
10.12. Integration
Section
10.13. Intention
of the Parties.
EXHIBITS
Exhibit
A
- Form of Owner Trust Certificate A-1
Exhibit
B
- Certificate of Trust of GSC Capital Corp. Mortgage Trust 2006-2B-1
Exhibit
C
- Form of Rule 144A Investment Representation C-1
Exhibit
D
- Form of Certificate of Non-Foreign Status D-1
Exhibit
E
- Form of Investment Letter E-1
Exhibit
F
- Form of Transferor Certificate F-1
Exhibit
G
- Form of ERISA Letter G-1
Exhibit
H
- Form of Transfer AffidavitH-1
Exhibit
I
- Form of Transferor CertificateI-1
Exhibit
J
- Form of Transferee CertificateJ-1
Exhibit
K
- Form of Transferor CertificateK-1
Exhibit
L
- Form of IndentureL-1
Exhibit
M- Form of Pooling and Servicing AgreementM-1
Exhibit
N- Form of Default and REMIC Conversion NoticeN-1
This
Amended and Restated Trust Agreement, dated as of June 23, 2006 (as amended
from
time to time, this “Trust Agreement”), among CWALT, Inc., a Delaware
corporation, as depositor (the “Depositor”), Wilmington Trust Company, a
Delaware banking corporation, as owner trustee (the “Owner Trustee”), and The
Bank of New York, as certificate registrar (in such capacity, the “Certificate
Registrar”) and certificate paying agent (in such capacity, the “Certificate
Paying Agent”).
WITNESSETH
THAT:
In
consideration of the mutual agreements herein contained, the Depositor and
the
Owner Trustee agree as follows:
WHEREAS,
the Depositor and the Owner Trustee have previously entered into the Trust
Agreement dated June 20, 2006 (the “Short Form Trust Agreement”).
WHEREAS,
the parties hereto desire to amend the terms of and restate the Trust
Agreement.
WHEREAS,
the conveyance of the Mortgage Loans by the Depositor (on behalf of the Seller)
to the Trust hereunder is intended to facilitate the simultaneous issuance
of
the Notes under the Indenture and issuance of the Certificates hereunder to
the
Seller as Holder, and the Depositor (on behalf of the Seller) has no present
intention of selling any of the Certificates. Accordingly, at the time of the
transaction set forth herein, the Seller will retain without interruption,
through the ownership of the Certificates, the economic benefits associated
with
ownership of the Mortgage Loans as well as the economic burdens associated
with
such ownership, subject to the lien of the Indenture and subject to this
Agreement.
WHEREAS,
the Depositor’s sole purpose hereunder is to transfer the Mortgage Loans
purchased pursuant to the Sale and Servicing Agreement, dated as of June 1,
2006, by and among the Depositor, the Issuing Entity, the Seller, the Master
Servicer, the Indenture Trustee and Countrywide Home Loans, Inc. (“CHL”), to GSC
Capital Corp. Mortgage Trust 2006-2 for issuance of the GSC Capital Corp.
Mortgage Trust 2006-2, Alternative Loan Trust Notes and Certificates, Series
2006-2.
In
consideration of the mutual agreements herein contained, the Depositor, the
Owner Trustee and the Bank of New York, in its capacity as certificate registrar
and certificate paying agent, agree as follows:
ARTICLE
I
Definitions
Section
1.01. Definitions.
For all
purposes of this Trust Agreement, except as otherwise expressly provided herein
or unless the context otherwise requires, capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in Appendix A
to
the Indenture, dated June 23, 2006, between GSC Capital Corp. Mortgage Trust
2006-2, as Issuing Entity and The Bank of New York, as Indenture Trustee, which
is incorporated by reference herein. All other capitalized terms used herein
shall have the meanings specified herein.
Section
1.02. Other
Definitional Provisions.
(a) All
terms
defined in this Trust Agreement shall have the defined meanings when used in
any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As
used
in this Trust Agreement and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in this
Trust
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Trust Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given
to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Trust Agreement or in any such
certificate or other document are inconsistent with the meanings of such terms
under generally accepted accounting principles, the definitions contained in
this Trust Agreement or in any such certificate or other document shall
control.
(c) The
words
“hereof,” “herein,” “hereunder” and words of similar import when used in this
Trust Agreement shall refer to this Trust Agreement as a whole and not to any
particular provision of this Trust Agreement; Article, Section and Exhibit
references contained in this Trust Agreement are references to Articles,
Sections and Exhibits in or to this Trust Agreement unless otherwise specified;
and the term “including” shall mean “including without limitation”.
(d) The
definitions contained in this Trust Agreement are applicable to the singular
as
well as the plural forms of such terms and to the masculine as well as to the
feminine and neuter genders of such terms.
(e) Any
agreement, instrument or statute defined or referred to herein or in any
instrument or certificate delivered in connection herewith means such agreement,
instrument or statute as from time to time amended, modified or supplemented
and
includes (in the case of agreements or instruments) references to all
attachments thereto and instruments incorporated therein; references to a Person
are also to its permitted successors and assigns.
ARTICLE
II
Organization
Section
2.01. Name.
The
trust created hereby (the “Trust”) shall be known as “GSC Capital Corp. Mortgage
Trust 2006-2”, in which name the Owner Trustee may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and ▇▇▇ and be sued.
Section
2.02. Office.
The
office of the Trust shall be in care of the Owner Trustee at the Corporate
Trust
Office or at such other address in Delaware as the Owner Trustee may designate
by written notice to the Certificateholders and the Depositor.
Section
2.03. Purposes
and Powers.
The
purpose of the Trust is to engage in the following activities:
(i) to
issue
the Notes pursuant to the Indenture and the Certificates pursuant to this Trust
Agreement and to sell the Notes and the Certificates;
(ii) to
pay
the organizational, start-up and transactional expenses of the
Trust;
(iii) to
assign, grant, transfer, pledge and convey the Mortgage Loans pursuant to the
Indenture and to hold, manage and distribute to the Certificateholder pursuant
to Section 5.01 herein, any portion of the Mortgage Loans released from the
Lien
of, and remitted to the Trust pursuant to the Indenture;
(iv) to
enter
into and perform its obligations under the Basic Documents to which it is to
be
a party;
(v) if
directed by holders of Certificates representing more than 50% of the beneficial
interests in the Trust, sell the Trust Estate subsequent to the discharge of
the
Indenture, all for the benefit of the holders of the Certificates;
(vi) to
engage
in those activities, including entering into agreements, that are necessary,
suitable or convenient to accomplish the foregoing or are incidental thereto
or
connected therewith;
(vii) subject
to compliance with the Basic Documents, to engage in such other activities
as
may be required in connection with conservation of the Trust Estate and the
making of distributions to the Certificateholder and the Noteholders;
and
(viii) to
issue
REMIC
Class A Notes and REMIC Class M Notes following a TMP Trigger Event.
The
Trust
is hereby authorized to engage in the foregoing activities. The Trust shall
not
engage in any activity other than in connection with the foregoing or other
than
as required or authorized by the terms of this Trust Agreement or the Basic
Documents.
Section
2.04. Appointment
of Owner Trustee.
The
Depositor hereby appoints the Owner Trustee as trustee of the Trust effective
as
of the date hereof, to have all the rights, powers and duties set forth
herein.
Section
2.05. Initial
Capital Contribution of Trust Estate.
The
Depositor hereby sells, assigns, transfers, conveys and sets over to the Trust,
as of the date hereof, the sum of $1. The Owner Trustee hereby acknowledges
receipt in trust from the Depositor, as of the date hereof, of the foregoing
contribution, which shall constitute the initial corpus of the Trust and shall
be deposited in the Certificate Distribution Account. The Depositor hereby
sells, assigns, transfers, conveys and sets over to the Trust, as of the date
hereof, without recourse, all right, title and interest in the Mortgage Loans
sold to the Depositor pursuant to the Sale and Servicing Agreement and all
rights, title and interest in the Sale and Servicing Agreement. The Owner
Trustee also acknowledges on behalf of the Trust the receipt in trust of the
Mortgage Loans, the rights with respect to the Swap Agreement and the rights
with respect to the representations and warranties made by the Seller and CHL
under the Sale and Servicing Agreement which shall constitute the Trust
Estate.
Section
2.06. Declaration
of Trust.
The
Owner Trustee hereby declares that it shall hold the Owner Trust Estate in
trust
upon and subject to the conditions set forth herein for the use and benefit
of
the Certificateholders, subject to the obligations of the Trust under the Basic
Documents. It is the intention of the parties hereto that the Trust constitute
a
“statutory trust” under the Statutory Trust Statute and that this Trust
Agreement constitute the governing instrument of such statutory trust. It is
the
intention of the parties hereto that, for federal and state income and state
and
local franchise tax purposes, the Trust (A) shall, as of the Closing Date and
for so long as any Notes are outstanding be treated for federal income tax
purposes as a qualified REIT subsidiary within the meaning of Section 856(i)
of
the Code, and thereafter be disregarded as a separate entity (and if at any
other time the Trust Certificates are held by more than one person for federal
income tax purposes, shall be treated as a partnership), and (B) that each
Class
of Offered Notes shall be debt, and the provisions of this Agreement shall
be
interpreted to further this intention. Except as otherwise provided in this
Trust Agreement, the rights of the Certificateholder will be those of equity
owners of the Trust. Effective as of the date hereof, the Owner Trustee shall
have all rights, powers and duties set forth herein and in the Statutory Trust
Statute with respect to accomplishing the purposes of the Trust.
Section
2.07. Liability
of the Holders of the Certificates.
The
Holders of the Certificates shall be jointly and severally liable directly
to
and shall indemnify any injured party for all losses, claims, damages,
liabilities and expenses of the Trust and the Owner Trustee (including Expenses,
to the extent not paid out of the Trust Estate); provided, however, that the
Holders of the Certificates shall not be liable for payments required to be
made
on the Notes or the Certificates, or for any losses incurred by a
Certificateholder in the capacity of an investor in the Certificates or a
Noteholder in the capacity of an investor in the Notes. The Holders of the
Certificates shall be liable for and shall promptly pay any entity level taxes
imposed on the Trust. In addition, any third party creditors of the Trust (other
than in connection with the obligations described in the second preceding
sentence for which the Holders of the Certificates shall not be liable) shall
be
deemed third party beneficiaries of this paragraph. The obligations of the
Holders of the Certificates under this paragraph shall be evidenced by the
Certificates.
Section
2.08. Title
to Trust Property.
Except
with respect to the Mortgage Loans, which will be assigned of record to the
Indenture Trustee pursuant to the Indenture, legal title to the Trust Estate
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the
Trust
Estate to be vested in a trustee or trustees, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee and/or a separate
trustee, as the case may be.
Section
2.09. Situs
of Trust.
The
Trust will be located and administered in the State of Delaware. All bank
accounts maintained by the Owner Trustee on behalf of the Trust shall be located
in the State of Delaware. The Trust shall not have any employees in any state
other than Delaware; provided, however, that nothing herein shall restrict
or
prohibit the Owner Trustee from having employees within or without the State
of
Delaware or taking actions outside the State of Delaware in order to comply
with
Section 2.03. Payments will be received by the Trust only in Delaware, New
York
or California, and payments will be made by the Trust only from Delaware, New
York or California. The only office of the Trust will be at the Corporate Trust
Office in Delaware.
Section
2.10. Representations
and Warranties of the Depositor.
The
Depositor hereby represents and warrants to the Owner Trustee that:
(i) The
Depositor is duly organized and validly existing as a corporation in good
standing under the laws of the State of Delaware, with power and authority
to
own its properties and to conduct its business as such properties are currently
owned and such business is presently conducted.
(ii) The
Depositor is duly qualified to do business as a foreign corporation in good
standing and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of its property or the conduct
of
its business shall require such qualifications and in which the failure to
so
qualify would have a material adverse effect on the business, properties, assets
or condition (financial or other) of the Depositor.
(iii) The
Depositor has the power and authority to execute and deliver this Trust
Agreement and to carry out its terms; the Depositor has full power and authority
to convey and assign the property to be conveyed and assigned to and deposited
with the Trust as part of the Trust Estate and the Depositor has duly authorized
such conveyance and assignment and deposit to the Trust by all necessary
corporate action; and the execution, delivery and performance of this Trust
Agreement have been duly authorized by the Depositor by all necessary corporate
action.
(iv) The
consummation of the transactions contemplated by this Trust Agreement and the
fulfillment of the terms hereof do not conflict with, result in any breach
of
any of the terms and provisions of, or constitute (with or without notice or
lapse of time) a default under, the articles of incorporation or bylaws of
the
Depositor, or any indenture, agreement or other instrument to which the
Depositor is a party or by which it is bound; nor result in the creation or
imposition of any Lien upon any of its properties pursuant to the terms of
any
such indenture, agreement or other instrument (other than pursuant to the Basic
Documents); nor violate any law or, to the best of the Depositor's knowledge,
any order, rule or regulation applicable to the Depositor of any court or of
any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Depositor or its
properties.
(v) The
Trust
is not required to register as an investment company under the Investment
Company Act and is not under the control of a Person required to so
register.
Section
2.11. Reserved.
Section
2.12. Investment
Company.
Neither
the Depositor nor any Holder of a Certificate shall take any action which would
cause the Trust to become an “investment company” which would be required to
register under the Investment Company Act.
Section
2.13. Transfer
of Trust Estate to Owner Trustee.
(a)
Effective as of the date hereof, the Depositor assigns, transfers, and otherwise
conveys to, and deposits with, the Trust, until this Agreement terminates
pursuant to Section 8.01, the entire Trust Estate, such conveyance to be made
in
exchange for the Notes and the Certificates. Such assignment includes, without
limitation, all amounts payable to and all rights of the holder of the
Collateral pursuant to this Agreement.
The
conveyance of the Collateral and all other assets constituting the Trust Estate
by the Depositor as contemplated hereby is absolute and is intended by the
parties to constitute a sale of the Collateral and all other assets constituting
the Trust Estate by the Depositor to the Trust. It is, further, not intended
that such conveyance be deemed a pledge of security for a loan. If such
conveyance is deemed to be a pledge of security for a loan, however, the
Depositor intends that the rights and obligations of the parties to such loan
shall be established pursuant to the terms of this Agreement. The Depositor
also
intends and agrees that, in such event:
(i) this
Agreement shall constitute a security agreement under applicable law and shall
be deemed to create valid and continuing security interest (as defined in the
applicable UCC) in the Trust Estate (including, without limitation, the
Collateral, the Certificate Distribution Account and any proceeds thereof)
in
favor of the Trust, which security interest is prior to all other Liens, and
is
enforceable as such as against creditors of and purchasers from the
Depositor;
(ii) other
than the security interest granted to the Trust pursuant to this Agreement,
Depositor has not pledged, assigned, sold, granted a security interest in,
or
otherwise conveyed any of the Trust Estate, has not authorized the filing of
and
is not aware of any financing statements against the Trust Estate that includes
a description of collateral covering the Trust Estate other than any financing
statements relating to the security interest granted to the Trust hereunder
or
that has been terminated. The Depositor is not aware of any judgment or tax
lien
filings against Depositor;
(iii) the
Depositor owns and has good and marketable title to the Trust Estate free and
clear of any Lien, claim or encumbrance of any Person;
(iv) the
Certificate Distribution Account constitutes a “deposit account” within the
meaning of the applicable UCC. The Depositor has directed the Certificate Paying
Agent to become the account holder of the Certificate Distribution Account.
The
Certificate Distribution Account is not in the name of any Person other than
as
provided in Section 3.10 of this Agreement. The Depositor has not consented
to
the maintenance of the Certificate Distribution Account in compliance with
instructions of any Person other than the Certificate Paying Agent;
(v) the
Trust
Estate (excluding the Mortgage Loans, REO Property, the Certificate Distribution
Account and any proceeds thereof) constitutes “general intangibles” within the
meaning of the applicable UCC). The Depositor has received all required consents
and approvals to the pledge of the portions of the Trust Estate (excluding
the
Certificate Distribution Account and any proceeds thereof) constituting payment
intangibles;
(vi) the
Depositor has caused or will have caused, within ten days, the filing of all
appropriate financing statements in the appropriate filing offices under
applicable law in order to perfect the security interest in the Trust Estate
granted to the Trust hereunder. All financing statements filed or to be filed
against the Depositor in favor of the Trust (or any subsequent assignee,
including, without limitation, the Indenture Trustee) in connection herewith
describing the Trust Estate contain a statement to the following effect, “A
purchase of, or security interest in, any collateral described in this financing
statement will violate the rights of the secured party;” and
(vii) the
Depositor shall, to the extent consistent with this Agreement, take such
additional reasonable actions as may be necessary to ensure that, if this
Agreement were deemed to create a security interest in the Mortgage Loans and
the other assets of the Trust Estate, such security interest would be a
perfected security interest of first priority under applicable law and will
be
maintained as such throughout the life of this Agreement. Notifications to,
and
acknowledgments, receipts or confirmations from, Persons holding such property,
shall be deemed to be notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the Owner Trustee on behalf of the Trust (or any subsequent assignee,
including, without limitation, the Indenture Trustee) for the purpose of
perfecting such security interest under applicable law.
(b) The
Owner
Trustee hereby acknowledges the receipt by it of the Trust Estate and such
other
documents and instruments referenced above, and declares that it holds and
will
hold the Trust Estate and such documents and instruments and that it holds
and
will hold all other assets and documents to be included in the Trust Estate,
in
trust for the exclusive use and benefit of all present and future
Certificateholders.
(c) Except
as
expressly provided in Section 8.01, neither the Depositor nor any
Certificateholder shall be able to revoke the Trust established hereunder.
Except as provided in Sections 4.01, 4.02, 4.03, 5.01 and 8.01 hereof, the
Owner
Trustee or Certificate Paying Agent (as applicable) shall not assign, sell,
dispose of or transfer any interest in, nor may the Depositor or any
Certificateholder withdraw from the Trust, the Collateral or other asset
constituting the Trust Estate.
ARTICLE
III
Conveyance
of the Mortgage Loans; Certificates
Section
3.01. Conveyance
of the Mortgage Loans.
The
Depositor, concurrently with the execution and delivery hereof, contributes,
transfers, conveys and assigns to the Trust, on behalf of the Holders of the
Notes and the Certificates, without recourse, all its right, title and interest
in and to the Mortgage Loans, including all interest and principal received
on
or with respect to the Mortgage Loans after the Cut-off Date (other than
payments of principal and interest due on the Mortgage Loans on or before the
Cut-off Date). In
the
event of a TMP Trigger Event, the assets of the Owner Trust Estate will be
comprised of REMIC regular interests. In addition, the Depositor hereby assigns
to the Trust all of its right, title, and interest in, to and under the Sale
and
Servicing Agreement.
The
conveyance of the Mortgage Loans by the Depositor (on behalf of the Seller)
to
the Trust under this Agreement is intended to facilitate the simultaneous
issuance of the Notes under the Indenture and issuance of the Certificates
hereunder to the Seller as Holder, and the Depositor has no present intention
of
selling any of the Certificates.
Section
3.02. Initial
Ownership.
Upon
the formation of the Trust by the contribution by the Depositor pursuant to
Section 2.05, and until the conveyance of the Mortgage Loans pursuant to Section
3.01 and the issuance of the Certificates, and thereafter except as otherwise
permitted hereunder, the
Seller shall be the sole Certificateholder.
Section
3.03. The
Certificates.
The
Trust Certificates shall be
issued
in the form of one or more Trust Certificates, each representing not less than
a
10% Certificate Percentage Interest.
The
Trust Certificates shall initially be registered in the name of GSC Capital
Corp. QRS Delaware Real Estate Holdings, Inc. The Certificates shall be executed
on behalf of the Trust by manual or facsimile signature of an authorized officer
of the Owner Trustee and authenticated in the manner provided in Section 3.04.
The Certificates bearing the manual or facsimile signatures of individuals
who
were, at the time when such signatures shall have been affixed, authorized
to
sign on behalf of the Trust, shall be validly issued and entitled to the benefit
of this Trust Agreement, notwithstanding that such individuals or any of them
shall have ceased to be so authorized prior to the authentication and delivery
of such Certificates or did not hold such offices at the date of authentication
and delivery of such Certificates. A Person shall become a Certificateholder
and
shall be entitled to the rights and subject to the obligations of a
Certificateholder hereunder upon such Person's acceptance of a Certificate
duly
registered in such Person's name, pursuant to Section 3.05.
A
transferee of a Certificate shall become a Certificateholder and shall be
entitled to the rights and subject to the obligations of a Certificateholder
hereunder upon such transferee's acceptance of a Certificate duly registered
in
such transferee's name pursuant to and upon satisfaction of the conditions
set
forth in Section 3.05.
Section
3.04. Authentication
of Certificates.
The
Owner Trustee shall cause all Certificates issued hereunder to be executed
and
authenticated on behalf of the Trust, authenticated and delivered to or upon
the
written order of the Depositor, signed by its chairman of the board, its
president or any vice president, without further corporate action by the
Depositor, in authorized denominations. No Certificate shall entitle its holder
to any benefit under this Trust Agreement or be valid for any purpose unless
there shall appear on such Certificate a certificate of authentication
substantially in the form set forth in Exhibit A, executed by the Owner Trustee
or the Certificate Registrar by manual signature; such authentication shall
constitute conclusive evidence that such Certificate shall have been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date
of their authentication.
Section
3.05. Registration
of and Limitations on Transfer and Exchange of Certificates.
(a) The
Certificate Registrar shall keep or cause to be kept, a Certificate Register
in
which, subject to such reasonable regulations as it may prescribe, the
Certificate Registrar shall provide for the registration of Certificates and
of
transfers and exchanges of Certificates as herein provided. The Bank of New
York
shall be the initial Certificate Registrar. If the Certificate Registrar resigns
or is removed, the Owner Trustee shall appoint a successor Certificate
Registrar.
Subject
to satisfaction of the conditions set forth below with respect to the
Certificate, upon surrender for registration of transfer of any Certificate
at
the office or agency maintained pursuant to Section 3.09, the Owner Trustee
or
the Certificate Registrar shall execute, authenticate and deliver in the name
of
the designated transferee or transferees, one or more new Certificates in
authorized denominations of a like aggregate amount dated the date of
authentication by the Owner Trustee or the Certificate Registrar. At the option
of a Holder, the Certificates may be exchanged for other Certificates of
authorized denominations of a like aggregate amount upon surrender of the
Certificates to be exchanged at the office or agency maintained pursuant to
Section 3.09.
Every
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in form satisfactory
to
the Certificate Registrar duly executed by the Holder or such Holder's attorney
duly authorized in writing. Each Certificate surrendered for registration of
transfer or exchange shall be cancelled and subsequently disposed of by the
Certificate Registrar in accordance with its customary practice.
No
service charge shall be 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 governmental charge that may
be
imposed in connection with any transfer or exchange of
Certificates.
No
Person
shall become a Certificateholder until it shall establish its non-foreign status
by submitting to the Certificate Paying Agent an IRS Form W-9 and the
Certificate of Non-Foreign Status set forth in Exhibit D.
No
transfer, sale, pledge or other disposition of a Certificate shall be made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event
of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) (a) an investment
letter in substantially the form attached hereto as Exhibit C (or in such form
and substance reasonably satisfactory to the Certificate Registrar and the
Depositor) which investment letter shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Master Servicers or the Depositor
and which investment letter states that, among other things, such transferee
(1)
is a “qualified institutional buyer” as defined under Rule 144A, acting for its
own account or the accounts of other “qualified institutional buyers” as defined
under Rule 144A, and (2) is aware that the proposed transferor intends to rely
on the exemption from registration requirements under the Securities Act of
1933, as amended, provided by Rule 144A or (ii) (a) a written Opinion of Counsel
acceptable to and in form and substance satisfactory to the Certificate
Registrar and the Depositor that such transfer may be made pursuant to an
exemption, describing the applicable exemption and the basis therefor, from
said
Act and laws or is being made pursuant to said Act and laws, which Opinion
of
Counsel shall not be an expense of the Trust, the Owner Trustee, the Certificate
Registrar, the Master Servicer or the Depositor and (b) the transferee executes
a representation letter, substantially in the form of Exhibit F to the
Agreement, and the transferor executes a representation letter, substantially
in
the form of Exhibit E hereto, each acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor, certifying the
facts surrounding such transfer, which representation letters shall not be
an
expense of the Trust, the Owner Trustee, the Certificate Registrar, the Master
Servicer or the Depositor and (B) the Certificate of Non-Foreign Status (in
substantially the form attached hereto as Exhibit D) acceptable to and in form
and substance reasonably satisfactory to the Certificate Registrar and the
Depositor, which certificate shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar or the Depositor; provided, however that
no
certification or Opinion of Counsel will be required in connection with the
initial transfer of any such Certificate by the Depositor to an affiliate of
the
Depositor. The Holder of a Certificate desiring to effect such transfer shall,
and does hereby agree to, indemnify the Trust, the Owner Trustee, the
Certificate Registrar, the Master Servicer 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. Notwithstanding the foregoing,
the
provisions of this paragraph shall not apply to the initial transfer of the
Certificates to the Depositor or the Seller, or an affiliate of the
Seller.
No
transfer of the Owner Trust Certificate shall be made unless the
intended transferee certifies in the form of Exhibit J hereto to the Owner
Trustee, the Certificate Registrar and the Indenture Trustee that, in connection
with such transfer, it will acquire both the Owner Trust Certificate and a
100%
Percentage Interest in each Class of Privately Offered Notes then outstanding,
thus becoming a Single Owner upon completion of such transfer. Notwithstanding
the foregoing, the Owner Trust Certificate may be pledged to secure indebtedness
and may be the subject of repurchase agreements treated as secured indebtedness
for federal income tax purposes. Upon a default under any such indebtedness,
the
lender or repurchase agreement counterparty, as applicable, shall deliver to
the
Certificate Registrar, the Owner Trustee and the Indenture Trustee a certificate
certifying that a default has occurred and that a REMIC Conversion should be
undertaken.
No
transfer of Certificates or any interest therein shall be made to any Person
unless the Depositor, the Owner Trustee, the Certificate Registrar, the Seller,
CHL and the Master Servicer are provided with an Opinion of Counsel which
establishes to the satisfaction of the Depositor, the Owner Trustee, the
Certificate Registrar, the Seller, CHL and the Master Servicer that the purchase
of Certificates is permissible under applicable law, will 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 Owner Trustee, the Certificate
Registrar, the Seller, CHL or the Master Servicer 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 Owner Trustee, the Certificate
Registrar, the Seller, CHL or the Master Servicer. In lieu of such Opinion
of
Counsel, a Person acquiring such Certificates may provide a certification in
the
form of Exhibit G to this Agreement, which the Depositor, the Owner Trustee,
the
Certificate Registrar, the Seller, CHL and the Master Servicer 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 Depositor to an affiliate of the Depositor (in which
case, the Depositor or any affiliate thereof shall be deemed to have represented
that such affiliate is not a Plan or a Person investing Plan Assets of any
Plan)
and the Owner Trustee and the Certificate Registrar shall be entitled to
conclusively rely upon a representation (which, upon the request of the Owner
Trustee or the Certificate Registrar, shall be a written representation) from
the Depositor of the status of such transferee as an affiliate of the Depositor.
Notwithstanding
the foregoing, the provisions of this paragraph shall not apply to the initial
transfer of the Certificates to the Depositor or the Seller, or an affiliate
of
the Seller.
No
transfer of the Certificate shall be made, unless following the transfer, 100%
of the Privately Offered Notes and the Certificate will be owned by a single
REIT, directly or indirectly through one or more QRSs of such REIT or one or
more entities disregarded as entities separate from such REIT or such QRSs;
provided, that, notwithstanding the foregoing, (x) the Certificate may be
pledged to secure indebtedness and may be the subject of repurchase agreements
treated by the Trust as secured indebtedness for federal income tax purposes,
and (y) the Certificate may be transferred by the related lender under any
such
related loan agreement or repurchase agreement upon a default under any such
indebtedness, in which case the transferor shall deliver to the Certificate
Registrar, the Owner Trustee and the Indenture Trustee a certificate
substantially in the form attached hereto as Exhibit K certifying to such
effect. Upon
a
default under any such indebtedness, the lender or repurchase agreement
counterparty, as applicable may deliver to the Certificate Registrar, the Owner
Trustee and the Indenture Trustee a certificate substantially in the form
attached hereto as Exhibit N certifying that a default has occurred and that
a
REMIC Conversion should be undertaken.
No
offer,
sale, transfer or other disposition (including pledge) of any Certificate shall
be made to any affiliate of the Depositor or the Issuing Entity, other than
the
initial transfer of the Certificates to the Depositor.
Notwithstanding
the foregoing, the provisions of this Section shall not apply to the initial
transfer of the Certificate to the Initial Single Owner or the re-registering
of
such Certificate to any repurchase agreement counterparty.
Section
3.06. Mutilated,
Destroyed, Lost or Stolen Certificates.
If (a)
any mutilated Certificate shall be surrendered to the Certificate Registrar,
or
if the Certificate Registrar shall receive evidence to its satisfaction of
the
destruction, loss or theft of any Certificate and (b) there shall be delivered
to the Certificate Registrar and the Owner Trustee such security or indemnity
as
may be required by them to save each of them harmless, then in the absence
of
notice to the Certificate Registrar or the Owner Trustee that such Certificate
has been acquired by a bona fide purchaser, the Owner Trustee shall execute
on
behalf of the Trust and the Owner Trustee or the Certificate Registrar, shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of any new Certificate under
this
Section 3.06, the Owner Trustee or the Certificate Registrar may require the
payment of a sum sufficient to cover any expenses of the Owner Trustee or the
Certificate Registrar (including fees and expenses of counsel) and any tax
or
other governmental charge that may be imposed in connection therewith. Any
duplicate Certificate issued pursuant to this Section 3.06 shall constitute
conclusive evidence of ownership in the Trust, as if originally issued, whether
or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section
3.07. Persons
Deemed Certificateholders.
Prior
to due presentation of a Certificate for registration of transfer, the Owner
Trustee, the Certificate Registrar or any Certificate Paying Agent may treat
the
Person in whose name any Certificate is registered in the Certificate Register
as the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 5.02 and for all other purposes whatsoever, and none of
the
Trust, the Owner Trustee, the Certificate Registrar or any Certificate Paying
Agent shall be bound by any notice to the contrary.
Section
3.08. Access
to List of Certificateholders' Names and Addresses.
The
Certificate Registrar shall furnish or cause to be furnished to the Depositor,
the Certificate Paying Agent or the Owner Trustee, within 15 days after receipt
by the Certificate Registrar of a written request therefor from the Depositor,
the Certificate Paying Agent or the Owner Trustee, a list, in such form as
the
Depositor, the Certificate Paying Agent or the Owner Trustee, as the case may
be, may reasonably require, of the names and addresses of the Certificateholders
as of the most recent Record Date. Each Holder, by receiving and holding a
Certificate, shall be deemed to have agreed not to hold any of the Trust, the
Depositor, the Certificate Paying Agent, the Certificate Registrar or the Owner
Trustee accountable by reason of the disclosure of its name and address,
regardless of the source from which such information was derived.
Section
3.09. Maintenance
of Office or Agency.
The
Owner Trustee on behalf of the Trust, shall maintain an office or offices or
agency or agencies where Certificates may be surrendered for registration of
transfer or exchange and where notices and demands to or upon the Owner Trustee
in respect of the Certificates and the Basic Documents may be served. The Owner
Trustee initially designates the office of the agent of the Indenture Trustee
at
c/o DTC Transfer Services, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ Entrance, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ for purposes of such surrender and the Corporate Trust Office
of
the Indenture Trustee as its office for such purposes, service of notices or
demands. The Owner Trustee shall give prompt written notice to the Depositor,
the Certificate Paying Agent, the Certificate Registrar and the
Certificateholders of any change in the location of the Certificate Register
or
any such office or agency.
Section
3.10. Certificate
Paying Agent.
(a)
The
Certificate Paying Agent shall make distributions to Certificateholders from
the
Certificate Distribution Account on behalf of the Trust in accordance with
the
provisions of the Certificates and Section 5.01 hereof from payments remitted
to
the Certificate Paying Agent by the Indenture Trustee pursuant to Section 4.02
of the Indenture. The Trust hereby appoints The Bank of New York as Certificate
Paying Agent and The Bank of New York hereby accepts such appointment and
further agrees that it will be bound by the provisions of this Trust Agreement
relating to the Certificate Paying Agent and shall:
(i) hold
all
sums held by it for the payment of amounts due with respect to the Certificates
in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein
provided;
(ii) give
the
Owner Trustee notice of any default by the Trust of which a Responsible Officer
of the Certificate Paying Agent has actual knowledge in the making of any
payment required to be made with respect to the Certificates;
(iii) at
any
time during the continuance of any such default, upon the written request of
the
Owner Trustee forthwith pay to the Owner Trustee on behalf of the Trust all
sums
so held in Trust by such Certificate Paying Agent;
(iv) comply
with all requirements of the Code with respect to the withholding from any
payments made by it on any Certificates of any applicable withholding taxes
imposed thereon and with respect to any applicable reporting requirements in
connection therewith; and
(v) not
institute bankruptcy proceedings against the Issuing Entity in connection with
this Trust Agreement.
(b) The
Trust
may revoke such power and remove the Certificate Paying Agent if it determines
in its sole discretion that the Certificate Paying Agent shall have failed
to
perform its obligations under this Trust Agreement in any material respect.
In
the event that The Bank of New York shall no longer be the Certificate Paying
Agent under this Trust Agreement and Paying Agent under the Indenture, the
Owner
Trustee shall appoint a successor to act as Certificate Paying Agent (which
shall be a bank or trust company) and which shall also be the successor Paying
Agent under the Indenture. The Owner Trustee shall cause such successor
Certificate Paying Agent or any additional Certificate Paying Agent appointed
by
the Owner Trustee to execute and deliver to the Owner Trustee an instrument
to
the effect set forth in Section 3.10(a) as it relates to the Certificate Paying
Agent. The Certificate Paying Agent shall return all unclaimed funds to the
Trust and upon removal of a Certificate Paying Agent such Certificate Paying
Agent shall also return all funds in its possession to the Trust. The provisions
of Sections 6.01, 6.04, 6.05, 6.06, 6.07, 6.08 and 7.01 shall apply to the
Certificate Paying Agent to the extent applicable. Any reference in this
Agreement to the Certificate Paying Agent shall include any co-paying agent
unless the context requires otherwise.
(c) The
Certificate Paying Agent shall make all distributions to Certificates, from
moneys on deposit in the Payment Account, in accordance with Section 5.01 of
this Agreement and Section 4.02 of the Indenture.
ARTICLE
IV
Authority
and Duties of Owner Trustee
Section
4.01. General
Authority.
The
Owner Trustee is authorized and directed to execute and deliver the Basic
Documents to which the Trust is to be a party and each certificate or other
document attached as an exhibit to or contemplated by the Basic Documents to
which the Trust is to be a party and any amendment or other agreement or
instrument described herein, as evidenced conclusively by the Owner Trustee's
execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, except as otherwise provided in this
Trust Agreement, to take all actions required of the Trust pursuant to the
Basic
Documents.
Section
4.02. General
Duties.
It
shall be the duty of the Owner Trustee to discharge (or cause to be discharged)
all of its responsibilities pursuant to the terms of this Trust Agreement and
the Basic Documents to which the Trust is a party and to administer the Trust
in
the interest of the Certificateholders, subject to the Basic Documents and
in
accordance with the provisions of this Trust Agreement.
Section
4.03. Action
upon Instruction.
(a)
Subject
to Article IV and in accordance with the terms of the Basic Documents, the
Certificateholders may by written instruction direct the Owner Trustee in the
management of the Trust. Such direction may be exercised at any time by written
instruction of the Certificateholders pursuant to Article IV.
(b) Notwithstanding
the foregoing, the Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel, that such action is likely
to
result in liability on the part of the Owner Trustee or is contrary to the
terms
hereof or of any Basic Document or is otherwise contrary to law.
(c) Whenever
the Owner Trustee is required to decide between alternative courses of action
permitted or required by the terms of this Trust Agreement or under any Basic
Document, or in the event that the Owner Trustee is unsure as to the application
of any provision of this Trust Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this Trust
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to
take
with respect to a particular set of facts, the Owner Trustee shall promptly
give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Certificateholders, the Owner Trustee shall
not be liable on account of such action to any Person. If the Owner Trustee
shall not have received appropriate instruction within 10 days of such notice
(or within such shorter period of time as reasonably may be specified in such
notice or may be necessary under the circumstances) it may, but shall be under
no duty to, take or refrain from taking such action not inconsistent with this
Trust Agreement or the Basic Documents, as it shall deem to be in the best
interests of the Certificateholders, and the Owner Trustee shall have no
liability to any Person for such action or inaction.
Section
4.04. No
Duties Except as Specified under Specified Documents or in
Instructions.
The
Owner Trustee shall not have any duty or obligation to manage, make any payment
with respect to, register, record, sell, dispose of, or otherwise deal with
the
Trust Estate, or to otherwise take or refrain from taking any action under,
or
in connection with, any document contemplated hereby to which the Owner Trustee
is a party, except as expressly provided (i) in accordance with the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Trust Agreement, (ii) in accordance with the Basic Documents and (iii) in
accordance with any document or instruction delivered to the Owner Trustee
pursuant to Section 4.03; and no implied duties or obligations shall be read
into this Trust Agreement or any Basic Document against the Owner Trustee.
The
Owner Trustee shall have no responsibility for filing any financing or
continuation statement many public office at anytime or to otherwise perfect
or
maintain the perfection of any security interest or lien granted to it hereunder
or to prepare or file any Securities and Exchange Commission filing for the
Trust or to record this Trust Agreement or any Basic Document. The Owner Trustee
nevertheless agrees that it will, at its own cost and expense, promptly take
all
action as may be necessary to discharge any liens on any part of the Trust
Estate that result from actions by, or claims against, the Owner Trustee that
are not related to the ownership or the administration of the Trust
Estate.
Section
4.05. Restrictions.
(a)
The
Owner Trustee or the Depositor (or an Affiliate thereof) shall not take any
action (x) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (y) that, to the actual knowledge of the Owner Trustee based
on
an Opinion of Counsel rendered by a law firm generally recognized to be
qualified to opine concerning the tax aspects of asset securitization, would
result in the Trust becoming taxable as a corporation for federal income tax
purposes. The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section 4.05.
Notwithstanding the preceding sentence, the Owner Trustee will not prohibit
any
actions contemplated herein in the case of a TMP Trigger Event and a REMIC
Conversion.
(b) The
Owner
Trustee shall not convey or transfer any of the Trust's properties or assets,
including those included in the Trust Estate, to any person unless (a) it shall
have received an Opinion of Counsel rendered by a law firm generally recognized
to be qualified to opine concerning the tax aspects of asset securitization
to
the effect that such transaction will not have any material adverse tax
consequence to the Trust or any Certificateholder and (b) such conveyance or
transfer shall not violate the provisions of Section 3.16(b) of the Indenture.
Notwithstanding the preceding sentence, the Owner Trustee will not prohibit
any
actions contemplated herein in the case of a TMP Trigger Event and a REMIC
Conversion.
Section
4.06. Prior
Notice to Certificateholders with Respect to Certain Matters.
With
respect to the following matters, the Owner Trustee shall not take action unless
at least 30 days before the taking of such action, the Owner Trustee shall
have
notified the Certificateholders in writing of the proposed action and the
Certificateholders shall not have notified the Owner Trustee in writing prior
to
the 30th day after such notice is given that such Certificateholders have
withheld consent or provided alternative direction:
(a) the
initiation of any claim or lawsuit by the Trust (except claims or lawsuits
brought in connection with the collection of cash distributions due and owing
under the Mortgage Loans) and the compromise of any action, claim or lawsuit
brought by or against the Trust (except with respect to the aforementioned
claims or lawsuits for collection of cash distributions due and owing under
the
Mortgage Loans);
(b) the
election by the Trust to file an amendment to the Certificate of Trust (unless
such amendment is required to be filed under the Statutory Trust
Statute);
(c) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is required;
(d) the
amendment of the Indenture by a supplemental indenture in circumstances where
the consent of any Noteholder is not required and such amendment materially
adversely affects the interest of the Certificateholders; and
(e) the
appointment pursuant to the Indenture of a successor Note Registrar, Paying
Agent or Indenture Trustee or pursuant to this Trust Agreement of a successor
Certificate Registrar or Certificate Paying Agent or the consent to the
assignment by the Note Registrar, Paying Agent, Indenture Trustee, Certificate
Registrar or Certificate Paying Agent of its obligations under the Indenture
or
this Trust Agreement, as applicable.
Section
4.07. Action
by Certificateholders with Respect to Certain Matters.
The
Owner Trustee shall, as expressly provided in the Basic Documents, sell the
Mortgage Loans after the termination of the Indenture. The Owner Trustee shall
take the actions referred to in the preceding sentence only upon written
instructions signed by the Certificateholders.
Section
4.08. Action
by Certificateholders with Respect to Bankruptcy.
The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy relating to the Trust without the unanimous prior approval of all
Certificateholders and the consent of the Noteholders and the Owner Trustee
and
the delivery to the Owner Trustee by each such Certificateholder of a
certificate certifying that such Certificateholder reasonably believes that
the
Trust is insolvent. This paragraph shall survive for one year following
termination of this Trust Agreement.
Section
4.09. Restrictions
on Certificateholders' Power.
The
Certificateholders shall not direct the Owner Trustee to take or to refrain
from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Trust Agreement or any of the
Basic
Documents or would be contrary to Section 2.03, nor shall the Owner Trustee
be
obligated to follow any such direction, if given.
Section
4.10. Majority
Control.
Except
as expressly provided herein, any action that may be taken by the
Certificateholders under this Trust Agreement may be taken by the Holders of
Certificates evidencing not less than a majority Percentage Interest
of
the
Certificates.
Except as expressly provided herein, any written notice of the
Certificateholders delivered pursuant to this Trust Agreement shall be effective
if signed by Holders of Certificates evidencing not less than a majority
Percentage Interest of the Certificates at the time of the delivery of such
notice.
Section
4.11. Optional
Redemption.
Upon
receipt of written instructions provided to the Owner Trustee by the Seller,
the
Owner Trustee shall cause the Issuing Entity to redeem the Notes in accordance
with Section 8.07 of the Indenture and shall provide all necessary notices
on
behalf of the Issuing Entity to effect the foregoing, provided that the Seller
shall deposit with the Indenture Trustee an amount equal to the aggregate
redemption price specified under Section 8.07 of the Indenture. The Owner
Trustee shall not have the power to exercise the right of the Issuing Entity
to
redeem the Notes pursuant to Section 8.07 of the Indenture, except as provided
above.
Notwithstanding the preceding sentence, the Owner Trustee will not prohibit
any
actions contemplated herein in the case of a TMP Trigger Event and a REMIC
Conversion.
ARTICLE
V
Application
of Trust Funds
Section
5.01. Distributions.
(a)
On each
Payment Date, the Certificate Paying Agent shall distribute to the
Certificateholders, on a pro rata basis based on the Certificate Percentage
Interests thereof, payments to the Certificateholders (as provided in Section
4.02 of the Indenture) for such Payment Date as reduced by any amount owing
to
the Owner Trustee hereunder and any Expenses of the Trust remaining
unpaid.
(b) In
the
event that any withholding tax is imposed on the distributions (or allocations
of income) to a Certificateholder, such tax shall reduce the amount otherwise
distributable to the Certificateholder in accordance with this Section 5.01.
The
Certificate Paying Agent is hereby authorized and directed to retain or cause
to
be retained from amounts otherwise distributable to the Certificateholders
sufficient funds for the payment of any tax that is legally owed by the Trust
(but such authorization shall not prevent the Owner Trustee from contesting
any
such tax in appropriate proceedings, and withholding payment of such tax, if
permitted by law, pending the outcome of such proceedings). The amount of any
withholding tax imposed with respect to a Certificateholder shall be treated
as
cash distributed to such Certificateholder at the time it is withheld by the
Certificate Paying Agent and remitted to the appropriate taxing authority.
If
there is a possibility that withholding tax is payable with respect to a
distribution (such as a distribution to a non-U.S. Certificateholder), the
Certificate Paying Agent may in its sole discretion withhold such amounts in
accordance with this paragraph (b).
(c) Distributions
to Certificateholders shall be subordinated to the creditors of the Trust,
including the Noteholders.
Section
5.02. Method
of Payment.
Subject
to Section 8.01(c), distributions required to be made to Certificateholders
on
any Payment Date as provided in Section 5.01 shall be made to each
Certificateholder of record on the preceding Record Date by wire transfer,
in
immediately available funds, to the account of such Holder at a bank or other
entity having appropriate facilities therefor, if such Certificateholder shall
have provided to the Certificate Registrar appropriate written instructions
at
least five Business Days prior to such Payment Date or, if not, by check mailed
to such Certificateholder at the address of such Holder appearing in the
Certificate Register.
Section
5.03. Tax
Returns.
The
Indenture Trustee shall (a) maintain (or cause to be maintained) the books
of
the Trust on a calendar year basis using the accrual method of accounting,
(b)
deliver (or cause to be delivered) to each Noteholder as may be required by
the
Code and applicable Treasury Regulations, such information as may be required
to
enable each Noteholder of a Class of Notes to which a “will be debt” opinion has
been delivered, to prepare its federal and state income tax returns, (c) prepare
and file or cause to be prepared and filed such tax returns relating to the
Trust as may be required by the Code and applicable Treasury Regulations (making
such elections as may from time to time be required or appropriate under any
applicable state or federal statutes, rules or regulations) and (d) collect
or
cause to be collected any withholding tax as described in and in accordance
with
Section 5.01 of this Trust Agreement with respect to income or distributions
to
Certificateholders and prepare or cause to be prepared the appropriate forms
relating thereto; provided, however, that the Indenture Trustee shall not be
required to prepare and file partnership tax returns on behalf of the Issuing
Entity unless the Indenture Trustee receives an opinion of counsel reasonably
satisfactory to it (which shall not be at the Indenture Trustee's expense,
but
shall be at the expense of the Depositor or other party furnishing such opinion)
as to the necessity of such filings. The Depositor, the Owner Trustee and the
initial holder of the Certificates intend that the Trust be treated for federal
income tax purposes as a “qualified REIT subsidiary,” within the meaning of the
Code. The Indenture Trustee will perform the calculation of accrual of original
issue discount and the amortization of premium on the Notes. The Holder of
the
Trust Certificates will be responsible for calculating or causing to be
calculated any information regarding the calculation of net income and excess
inclusion income.
Subsequent
to a TMP Trigger Event, the entity that has foreclosed on the Equity
Securities pursuant to any repurchase agreement shall cause to be provided
to the Indenture Trustee an opinion of counsel to the effect that each
REMIC elected to be treated as a REMIC will qualify as a REMIC under the
Code. Subsequent to any REMIC Conversion, the Indenture Trustee shall comply
with all REMIC administration as contemplated by Article X of each of
the indenture and the pooling and servicing agreement, attached hereto as
Exhibit L and Exhibit M, respectively. The
Owner
Trustee shall sign all tax and information returns prepared or caused to be
prepared by the Indenture Trustee pursuant to this Section 5.03 at the request
of the Indenture Trustee, and in doing so shall rely entirely upon, and shall
have no liability for information or calculations provided by, the Indenture
Trustee.
Section
5.04. Statements
to Certificateholders.
On each
Payment Date, the Certificate Paying Agent shall make available to each
Certificateholder the statement or statements provided to the Owner Trustee
and
the Certificate Paying Agent by the Indenture Trustee pursuant to Section 7.05
of the Indenture with respect to such Payment Date; provided, however, that
in
the event that any monthly statement is no longer available, at the request
of
any Certificateholder, the Indenture Trustee will deliver such monthly statement
to such Certificateholder.
ARTICLE
VI
Concerning
the Owner Trustee
Section
6.01. Acceptance
of Trusts and Duties.
The
Owner Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Trust
Agreement. The Owner Trustee and the Certificate Paying Agent also agree to
disburse all moneys actually received by it constituting part of the Trust
Estate upon the terms of the Basic Documents and this Trust Agreement. The
Owner
Trustee shall not be answerable or accountable hereunder or under any Basic
Document under any circumstances, except (i) for its own willful misconduct,
gross negligence or bad faith or grossly negligent failure to act or (ii) in
the
case of the inaccuracy of any representation or warranty contained in Section
6.03 expressly made by the Owner Trustee. In particular, but not by way of
limitation (and subject to the exceptions set forth in the preceding
sentence):
(a) The
Owner
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in accordance with the instructions of the Certificateholders
permitted under this Trust Agreement;
(b) No
provision of this Trust Agreement or any Basic Document shall require the Owner
Trustee to expend or risk funds or otherwise incur any financial liability
in
the performance of any of its rights, duties or powers hereunder or under any
Basic Document if the Owner Trustee shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured or provided to it;
(c) Under
no
circumstances shall the Owner Trustee be liable for indebtedness evidenced
by or
arising under any of the Basic Documents, including the principal of and
interest on the Notes;
(d) The
Owner
Trustee shall not be responsible for or in respect of the validity or
sufficiency of this Trust Agreement or for the due execution hereof by the
Depositor or for the form, character, genuineness, sufficiency, value or
validity of any of the Trust Estate, or for or in respect of the validity or
sufficiency of the Basic Documents, the Notes, the Certificates, other than
the
certificate of authentication on the Certificates, if executed by the Owner
Trustee and the Owner Trustee shall in no event assume or incur any liability,
duty, or obligation to any Noteholder or to any Certificateholder, other than
as
expressly provided for herein or expressly agreed to in the Basic
Documents;
(e) The
execution, delivery, authentication and performance by it of this Trust
Agreement will not require the authorization, consent or approval of, the giving
of notice to, the filing or registration with, or the taking of any other action
with respect to, any governmental authority or agency;
(f) The
Owner
Trustee shall not be liable for the default or misconduct of the Depositor,
Indenture Trustee, Certificate Registrar or the Master Servicer under any of
the
Basic Documents or otherwise and the Owner Trustee shall have no obligation
or
liability to perform the obligations of the Trust under this Trust Agreement
or
the Basic Documents that are required to be performed by the Indenture Trustee
under the Indenture or the Seller under the Sale and Servicing Agreement;
and
(g) The
Owner
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it or duties imposed by this Trust Agreement, or to institute, conduct
or defend any litigation under this Trust Agreement or otherwise or in relation
to this Trust Agreement or any Basic Document, at the request, order or
direction of any of the Certificateholders, unless such Certificateholders
have
offered to the Owner Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities that may be incurred by the Owner Trustee
therein or thereby. The right of the Owner Trustee to perform any discretionary
act enumerated in this Trust Agreement or in any Basic Document shall not be
construed as a duty, and the Owner Trustee shall not be answerable for other
than its gross negligence or willful misconduct in the performance of any such
act.
Section
6.02. Furnishing
of Documents.
The
Owner Trustee shall furnish to the Certificateholders promptly upon receipt
of a
written reasonable request therefor, duplicates or copies of all reports,
notices, requests, demands, Certificates, financial statements and any other
instruments furnished to the Trust under the Basic Documents.
Section
6.03. Representations
and Warranties.
The
Wilmington Trust Company hereby represents and warrants to the Depositor, for
the benefit of the Certificateholders, that:
(a) It
is a
banking corporation duly organized and validly existing in good standing under
the laws of the State of Delaware. It has all requisite corporate power and
authority to execute, deliver and perform its obligations under this Trust
Agreement;
(b) It
has
taken all corporate action necessary to authorize the execution and delivery
by
it of this Trust Agreement, and this Trust Agreement will be executed and
delivered by one of its officers who is duly authorized to execute and deliver
this Trust Agreement on its behalf;
(c) Neither
the execution nor the delivery by it of this Trust Agreement, nor the
consummation by it of the transactions contemplated hereby nor compliance by
it
with any of the terms or provisions hereof will contravene any federal or
Delaware law, governmental rule or regulation governing the banking or trust
powers of the Owner Trustee or any judgment or order binding on it, or
constitute any default under its charter documents or bylaws or any indenture,
mortgage, contract, agreement or instrument to which it is a party or by which
any of its properties may be bound;
(d) This
Trust Agreement assuming due authorization, execution and delivery by the Owner
Trustee and the Depositor, constitutes a valid, legal and binding obligation
of
the Owner Trustee, enforceable against it in accordance with the terms hereof
subject to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the enforcement of creditors' rights generally and to
general principles of equity, regardless of whether such enforcement is
considered in a proceeding in equity or at law;
(e) The
Owner
Trustee is not in default with respect to any order or decree of any court
or
any order, regulation or demand of any Federal, state, municipal or governmental
agency, which default might have consequences that would materially and
adversely affect the condition (financial or other) or operations of the Owner
Trustee or its properties or might have consequences that would materially
adversely affect its performance hereunder; and
(f) No
litigation is pending or, to the best of the Owner Trustee's knowledge,
threatened against the Owner Trustee which would prohibit its entering into
this
Trust Agreement or performing its obligations under this Trust
Agreement.
Section
6.04. Reliance;
Advice of Counsel.
(a)
The
Owner Trustee shall incur no liability to anyone in acting upon any signature,
instrument, notice, resolution, request, consent, order, certificate, report,
opinion, note, or other document or paper believed by it to be genuine and
believed by it to be signed by the proper party or parties. The Owner Trustee
may accept a certified copy of a resolution of the board of directors or other
governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full
force
and effect. As to any fact or matter the method of determination of which is
not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by
the
treasurer or other authorized officers of the relevant party, as to such fact
or
matter and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In
the
exercise or administration of the Trust hereunder and in the performance of
its
duties and obligations under this Trust Agreement or the Basic Documents, the
Owner Trustee (i) may act directly or through its agents, attorneys, custodians
or nominees (including persons acting under a power of attorney) pursuant to
agreements entered into with any of them, and the Owner Trustee shall not be
liable for the conduct or misconduct of such agents, attorneys, custodians
or
nominees (including persons acting under a power of attorney) if such persons
have been selected by the Owner Trustee with reasonable care, and (ii) may
consult with counsel, accountants and other skilled persons to be selected
with
reasonable care and employed by it. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
opinion or advice of any such counsel, accountants or other such Persons and
not
contrary to this Trust Agreement or any Basic Document.
Section
6.05. Not
Acting in Individual Capacity.
Except
as provided in this Article VI, in accepting the trusts hereby created
Wilmington Trust Company acts solely as Owner Trustee hereunder and not in
its
individual capacity, and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Trust Agreement or any Basic
Document shall look only to the Trust Estate for payment or satisfaction
thereof.
Section
6.06. Owner
Trustee Not Liable for Certificates or Related Documents.
The
recitals contained herein and in the Certificates (other than the signatures
of
the Owner Trustee on the Certificates) shall be taken as the statements of
the
Depositor, and the Owner Trustee assumes no responsibility for the correctness
thereof. The Owner Trustee makes no representations as to the validity or
sufficiency of this Trust Agreement, of any Basic Document or of the
Certificates (other than the signatures of the Owner Trustee on the
Certificates) or the Notes, or of any Related Documents, or of MERS or the
MERS®
System. The Owner Trustee shall at no time have any responsibility or liability
with respect to the sufficiency of the Trust Estate or its ability to generate
the payments to be distributed to Certificateholders under this Trust Agreement
or the Noteholders under the Indenture, including compliance by the Depositor
or
the Seller with any warranty or representation made under any Basic Document
or
in any related document or the accuracy of any such warranty or representation,
or any action of the Certificate Paying Agent, the Certificate Registrar or
the
Indenture Trustee taken in the name of the Owner Trustee.
Section
6.07. Owner
Trustee May Own Certificates and Notes.
The
Owner Trustee in its individual or any other capacity may, subject to Section
3.05, become the owner or pledgee of Certificates or Notes and may deal with
CHL, the Depositor, the Seller, the Certificate Paying Agent, the Certificate
Registrar and the Indenture Trustee in transactions with the same rights as
it
would have if it were not Owner Trustee.
Section
6.08. Payments
from Trust Estate.
All
payments to be made by the Owner Trustee under this Trust Agreement or any
of
the Basic Documents to which the Owner Trustee is a party shall be made only
from the income and proceeds of the Trust Estate or from other amounts required
to be provided by the Certificateholders and only to the extent that the Owner
Trust shall have received income or proceeds from the Trust Estate or the
Certificateholders to make such payments in accordance with the terms hereof.
Wilmington Trust Company, in its individual capacity, shall not be liable for
any amounts payable under this Trust Agreement or any of the Basic Documents
to
which the Owner Trustee is a party.
Section
6.09. Doing
Business in Other Jurisdictions.
Notwithstanding anything contained herein to the contrary, neither Wilmington
Trust Company nor the Owner Trustee shall be required to take any action in
any
jurisdiction other than in the State of Delaware if the taking of such action
will, even after the appointment of a co-trustee or separate trustee in
accordance with Section 9.05 hereof, (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration with
or the taking of any other action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware; (ii)
result in any fee, tax or other governmental charge under the laws of the State
of Delaware becoming payable by Wilmington Trust Company; or (iii) subject
Wilmington Trust Company to personal jurisdiction in any jurisdiction other
than
the State of Delaware for causes of action arising from acts unrelated to the
consummation of the transactions by Wilmington Trust Company or the Owner
Trustee, as the case may be, contemplated hereby.
Section
6.10. Liability
of Certificate Registrar and Certificate Paying Agent.
All
provisions affording protection or rights to or limiting the liability of the
Owner Trustee, including the provisions of this Agreement permitting the Owner
Trustee to resign, merge or consolidate, shall inure as well to the Certificate
Registrar and Certificate Paying Agent.
Section
6.11. Derivative
Contracts.
(a) At
the
direction of the Seller, the Owner Trustee shall, on behalf of the Trust, enter
into derivative contracts for the benefit of the Certificates; provided however
the counterparty to such derivative contract shall not be an Affiliate of the
Depositor. Any acquisition of a derivative contract shall be accompanied by
(i)
an appropriate amendment to this Agreement, and (ii) any Opinion of Counsel
required by Section 10.01.
(b) All
collections, proceeds and other amounts in respect of the derivative contracts
payable by the derivative counterparty shall be distributed to the Certificates
on the Payment Date following receipt thereof by the Certificate Paying
Agent.
(c) Any
derivative contract that provides for any payment obligation on the part of
the
Trust must (i) be without recourse to the assets of the Trust, (ii) contain
a
non-petition covenant provision from the derivative counterparty, (iii) limit
payment dates thereunder for payments, if any, by the Trust to Payment Dates
(iv) contain a provision limiting any cash payments due to the derivative
counterparty on any, day under such derivative contract solely to funds
available therefor in the Certificate Distribution Account available to make
payments to the Holders of the Certificates on such Payment Date, and (v)
provide for copies of all notices and correspondence to be provided to the
Certificate Paying Agent.
(d) Each
derivative contract must (i) provide for the direct payment of any amounts
by
the derivative counterparty thereunder to the Certificate Distribution Account
at least one Business Day prior to the related Payment Date, (ii) contain an
assignment of all of the Trust’s rights (but none of its obligations) under such
derivative contract to the Owner Trustee on behalf the Certificateholders and
shall include an express consent to the derivative counterparty to such
assignment, (iii) provide that in the event of the occurrence of an Event of
Default, such derivative contract shall terminate upon the direction of a 50.01%
or greater Percentage Interest of the Certificates, and (iv) prohibit the
derivative counterparty from “setting-off’ or “netting” other obligations of the
Trust and its Affiliates against such derivative counterparty’s payment
obligations thereunder.
(e) The
Seller shall determine, in its sole discretion, whether any derivative contract
conforms to the requirements of Section 6.11(c) and (d).
(f) Neither
the Seller nor the Depositor shall have any direct or indirect obligation under
the derivative contracts.
Notwithstanding
the foregoing, if a TMP Trigger Event occurs, the aforementioned right of the
Certificateholder to enter into a special derivatives contract will
terminate.
ARTICLE
VII
Compensation
of Owner Trustee
Section
7.01. Owner
Trustee's Fees and Expenses.
The
Owner Trustee shall receive as compensation for its services hereunder an amount
equal to the Owner Trustee Fee. The Owner Trustee shall be reimbursed by the
Depositor or the Master Servicer for its reasonable expenses hereunder and
under
the Basic Documents, including the reasonable compensation, expenses and
disbursements of such agents, representatives, experts and counsel as the Owner
Trustee may reasonably employ in connection with the exercise and performance
of
its rights and its duties hereunder and under the Basic Documents. The amount
of
the Owner Trustee's Fee shall be paid annually by the Indenture Trustee pursuant
to Section 6.07 of the Indenture.
Section
7.02. Indemnification.
The
Depositor shall indemnify, defend and hold harmless the Owner Trustee, the
Certificate Registrar and the Certificate Paying Agent, solely in its capacity
as Certificate Paying Agent, and their respective successors, assigns, agents
and servants (collectively, the “Indemnified
Parties”)
from
and against, any and all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever (collectively, “Expenses”)
which
may at any time be imposed on, incurred by, or asserted against any Indemnified
Party in any way relating to or arising out of this Trust Agreement, the Basic
Documents, the Trust Estate, the administration of the Trust Estate or the
action or inaction of the Owner Trustee, the Certificate Registrar and the
Certificate Paying Agent, solely in its capacity as Certificate Paying Agent,
hereunder, provided, that:
(i) the
Depositor shall not be liable for or required to indemnify an Indemnified Party
from and against Expenses arising or resulting from the Owner Trustee's, the
Certificate Registrar's or the Certificate Paying Agent's willful misconduct,
gross negligence or bad faith or as a result of any inaccuracy of a
representation or warranty of the Owner Trustee contained in Section 6.03
expressly made by the Owner Trustee;
(ii) with
respect to any such claim, the Indemnified Party shall have given the Depositor
written notice thereof promptly after the Indemnified Party shall have actual
knowledge thereof,
(iii) while
maintaining control over its own defense, the Depositor shall consult with
the
Indemnified Party in preparing such defense; and
(iv) notwithstanding
anything in this Agreement to the contrary, the Depositor shall not be liable
for settlement of any claim by an Indemnified Party entered into without the
prior consent of the Depositor which consent shall not be unreasonably
withheld.
The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee, the Certificate Registrar or the Certificate
Paying Agent or the termination of this Trust Agreement. In the event of any
claim, action or proceeding for which indemnity will be sought pursuant to
this
Section 7.02, the Owner Trustee's, the Certificate Registrar's or the
Certificate Paying Agent's choice of legal counsel, if other than the legal
counsel retained by the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent in connection with the execution and delivery of this
Trust Agreement, shall be subject to the approval of the Depositor, which
approval shall not be unreasonably withheld. In addition, upon written notice
to
the Owner Trustee, the Certificate Registrar or the Certificate Paying Agent
and
with the consent of the Owner Trustee, the Certificate Registrar or the
Certificate Paying Agent which consent shall not be unreasonably withheld,
the
Depositor has the right to assume the defense of any claim, action or proceeding
against the Owner Trustee, the Certificate Registrar or the Certificate Paying
Agent.
ARTICLE
VIII
Termination
of Trust Agreement
Section
8.01. Termination
of Trust Agreement.
(a)
This
Trust Agreement (other than Article VII) and the Trust shall terminate and
be of
no further force or effect upon the earliest of (i) the final distribution
of
all moneys or other property or proceeds of the Trust Estate in accordance
with
the terms of the Indenture and this Trust Agreement, (ii) the distribution
of
all of the assets of the Trust Estate, in accordance with written instructions
provided to the Owner Trustee by the Master Servicer, following the optional
redemption of the Notes by the Issuing Entity pursuant to Section 8.07 of the
Indenture and subject to Article IX of the Sale and Servicing Agreement;
provided in each case that all amounts owing to the Noteholders to the extent
payable from the Trust Estate or proceeds thereof have been paid in full and
that all obligations under the Indenture have been discharged. The bankruptcy,
liquidation, dissolution, death or incapacity of any Certificateholder shall
not
(x) operate to terminate this Trust Agreement or the Trust or (y) entitle such
Certificateholder's legal representatives or heirs to claim an accounting or
to
take any action or proceeding in any court for a partition or winding up of
all
or any part of the Trust or the Trust Estate or (z) otherwise affect the rights,
obligations and liabilities of the parties hereto.
(b) Except
as
provided in Section 8.01(a), neither the Depositor nor any Certificateholder
shall be entitled to revoke or terminate the Trust.
(c) Notice
of
any termination of the Trust, specifying the Payment Date upon which
Certificateholders shall surrender their Certificates to the Certificate Paying
Agent for payment of the final distribution and cancellation, shall be given
by
the Certificate Paying Agent by letter to Certificateholders mailed within
five
Business Days of receipt of notice of the final payment on the Notes from the
Indenture Trustee, stating (i) the Payment Date upon or with respect to which
final payment of the Certificates shall be made upon presentation and surrender
of the Certificates at the office of the Certificate Paying Agent therein
designated, (ii) the amount of any such final payment and (iii) that the Record
Date otherwise applicable to such Payment Date is not applicable, payments
being
made only upon presentation and surrender of the Certificates at the office
of
the Certificate Payment Agent therein specified. The Certificate Paying Agent
shall give such notice to the Owner Trustee and the Certificate Registrar at
the
time such notice is given to Certificateholders. Upon presentation and surrender
of the Certificates, the Certificate Paying Agent shall cause to be distributed
to Certificateholders amounts distributable on such Payment Date pursuant to
Section 5.01.
(d) In
the
event that all of the Certificateholders shall not surrender their Certificates
for cancellation within six months after the date specified in the above
mentioned written notice, the Certificate Paying Agent shall give a second
written notice to the remaining Certificateholders to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. Subject to applicable laws with respect to escheat of funds, if within
one year following the Payment Date on which final payment of the Certificates
was to have been made pursuant to Section 3.03 of the Indenture, all the
Certificates shall not have been surrendered for cancellation, the Certificate
Paying Agent may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Certificateholders concerning
surrender of their Certificates, and the cost thereof shall be paid out of
the
funds and other assets that shall remain subject to this Trust Agreement. Any
funds remaining in the Certificate Distribution Account after exhaustion of
such
remedies shall be distributed by the Certificate Paying Agent to the
Depositor.
(e) Upon
the
winding up of the Trust and its termination, the Owner Trustee shall cause
the
Certificate of Trust to be cancelled by filing a certificate of cancellation
with the Secretary of State in accordance with the provisions of Section 3810(c)
of the Statutory Trust Statute.
(f) Notwithstanding
anything to the contrary herein, the Trust shall not terminate upon the
occurrence of a TMP Trigger Event or REMIC Conversion.
ARTICLE
IX
Successor
Owner Trustees and Additional Owner Trustees
Section
9.01. Eligibility
Requirements for Owner Trustee.
The
Owner Trustee shall at all times be a corporation satisfying the provisions
of
Section 3807(a) of the Statutory Trust Statute; authorized to exercise corporate
trust powers; having a combined capital and surplus of at least $50,000,000
and
subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) a rating of at least Baa3 by Moody's or
is
otherwise acceptable to the Rating Agencies. If such corporation shall publish
reports of condition at least annually pursuant to law or to the requirements
of
the aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed
to
be its combined capital and surplus as set forth in its most recent report
of
condition so published. In case at any time the Owner Trustee shall cease to
be
eligible in accordance with the provisions of this Section 9.01, the Owner
Trustee shall resign immediately in the manner and with the effect specified
in
Section 9.02.
Section
9.02. Replacement
of Owner Trustee.
The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving 30 days prior written notice thereof to the Depositor. As
a
condition to the effectiveness of any such resignation, at least 15 calendar
days prior to the effective date of such resignation, the Owner Trustee shall
provide (x) written notice to the Depositor of any successor pursuant to this
Section and (y) in writing and in form and substance reasonably satisfactory
to
the Depositor, all information reasonably requested by the Depositor in order
to
comply with its reporting obligations under Item 6.02 of Form 8-K with respect
to the resignation of the Owner Trustee. Upon receiving such notice of
resignation, the Depositor shall promptly appoint a successor Owner Trustee,
by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the resigning Owner Trustee and to the successor Owner Trustee.
If
no successor Owner Trustee shall have been so appointed and have accepted
appointment within 30 days after the giving of such notice of resignation,
the
resigning Owner Trustee may petition any court of competent jurisdiction for
the
appointment of a successor Owner Trustee.
If
at any
time the Owner Trustee shall cease to be eligible in accordance with the
provisions of Section 9.01 and shall fail to resign after written request
therefor by the Depositor, or if at any time the Owner Trustee shall be legally
unable to act, or shall be adjudged bankrupt or insolvent, or a receiver of
the
Owner Trustee or of its property shall be appointed, or any public officer
shall
take charge or control of the Owner Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation or the Owner Trustee
shall fail to fulfill its obligations under Section 9.02 with respect to notice
to the Depositor or Article XI of the Sale and Servicing Agreement, and such
failure continues for the lesser of 10 calendar days or such period in which
the
applicable Exchange Act Report can be filed timely (without taking into account
any extensions), then the Depositor may remove the Owner Trustee.
Any
resignation or removal of the Owner Trustee and appointment of a successor
Owner
Trustee pursuant to any of the provisions of this Section shall not become
effective until acceptance of appointment by the successor Owner Trustee
pursuant to Section 9.03 and payment of all fees and expenses owed to the
outgoing Owner Trustee. The Master Servicer shall provide notice of such
resignation or removal of the Owner Trustee to each of the Rating
Agencies.
Section
9.03. Successor
Owner Trustee.
Any
successor Owner Trustee appointed pursuant to Section 9.02 shall execute,
acknowledge and deliver to the Indenture Trustee and to its predecessor Owner
Trustee an instrument accepting such appointment under this Trust Agreement,
and
thereupon the resignation or removal of the predecessor Owner Trustee shall
become effective, and such successor Owner Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor under this Trust Agreement, with
like
effect as if originally named as Owner Trustee. The predecessor Owner Trustee
shall upon payment of its fees and expenses deliver to the successor Owner
Trustee all documents and statements and monies held by it under this Trust
Agreement; and the predecessor Owner Trustee shall execute and deliver such
instruments and do such other things as may reasonably be required for fully
and
certainly vesting and confirming in the successor Owner Trustee all such rights,
powers, duties and obligations.
No
successor Owner Trustee shall accept appointment as provided in this Section
9.03 unless at the time of such acceptance such successor Owner Trustee shall
be
eligible pursuant to Section 9.01.
Upon
acceptance of appointment by a successor Owner Trustee pursuant to this Section
9.03, the Owner Trustee shall mail notice thereof to all Certificateholders,
the
Indenture Trustee, the Noteholders and the Rating Agencies.
Section
9.04. Merger
or Consolidation of Owner Trustee.
Any
Person into which the Owner Trustee may be merged or converted or with which
it
may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any Person
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of
any
of the parties hereto, anything herein to the contrary notwithstanding;
provided, that such Person shall be eligible pursuant to Section 9.01 and,
provided, further, that the Owner Trustee shall mail notice of such merger
or
consolidation to the Rating Agencies.
As
a
condition to the effectiveness of any merger or consolidation, at least 15
calendar days prior to the effective date of any merger or consolidation of
the
Owner Trustee, the Owner Trustee shall provide (x) written notice to the
Depositor and the Master Servicer of any successor pursuant to this Section
and
(y) in writing and in form and substance reasonably satisfactory to the
Depositor, all information reasonably requested by the Depositor in order to
comply with its reporting obligation under Item 6.02 of Form 8-K with respect
to
the successor Owner Trust.
Section
9.05. Appointment
of Co-Trustee or Separate Trustee.
Notwithstanding any other provisions of this Trust Agreement, at any time,
for
the purpose of meeting any legal requirements of any jurisdiction in which
any
part of the Trust Estate may at the time be located, the Owner Trustee shall
have the power and shall execute and deliver all instruments to appoint one
or
more Persons to act as co-trustee, jointly with the Owner Trustee, or as
separate trustee or trustees, of all or any part of the Trust Estate, and to
vest in such Person, in such capacity, such title to the Trust or any part
thereof and, subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Owner Trustee may consider
necessary or desirable. No co-trustee or separate trustee under this Trust
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 9.01 and no notice of the appointment of
any
co-trustee or separate trustee shall be required pursuant to Section
9.03.
Each
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(a) All
rights, powers, duties and obligations conferred or imposed upon the Owner
Trustee shall be conferred upon and exercised or performed by the Owner Trustee
and such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without the
Owner Trustee joining in such act), except to the extent that under any law
of
any jurisdiction in which any particular act or acts are to be performed, the
Owner Trustee shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations (including the
holding of title to the Trust Estate or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by such separate trustee
or co-trustee, but solely at the direction of the Owner Trustee;
(b) No
trustee under this Trust Agreement shall be personally liable by reason of
any
act or omission of any other trustee under this Trust Agreement;
and
(c) The
Owner
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee.
Any
notice, request or other writing given to the Owner Trustee shall be deemed
to
have been given to each of the then separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Trust Agreement and the
conditions of this Article. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Trust Agreement, specifically including every provision of this Trust
Agreement relating to the conduct of, affecting the liability of, or affording
protection to, the Owner Trustee. Each such instrument shall be filed with
the
Owner Trustee.
Any
separate trustee or co-trustee may at any time appoint the Owner Trustee as
its
agent or attorney-in-fact with full power and authority, to the extent not
prohibited by law, to do any lawful act under or in respect of this Trust
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a
new
or successor co-trustee or separate trustee.
ARTICLE
X
Miscellaneous
Section
10.01. Amendments.
(a)
This
Trust Agreement may be amended from time to time by the parties hereto as
specified in this Section, provided that any amendment, except as provided
in
subparagraph (e) below, be accompanied by an Opinion of Counsel addressed to
the
Owner Trustee, the Certificate Registrar and the Certificate Paying Agent and
obtained by the Master Servicer to the effect that such amendment (i) complies
with the provisions of this Section and (ii) if the Depositor or an affiliate
thereof is not the Majority Certificateholder, would not cause the Trust to
be
subject to an entity level tax for federal income tax purposes.
(b) If
the
purpose of the amendment (as detailed therein) is to correct any mistake,
eliminate any inconsistency, cure any ambiguity or deal with any matter not
covered (i.e. to give effect to the intent of the parties and, if applicable,
to
the expectations of the Holders), it shall not be necessary to obtain the
consent of any Holders, but the Owner Trustee, the Certificate Registrar and
the
Certificate Paying Agent shall be furnished with (A) a letter from the Rating
Agencies that the amendment will not result in the downgrading or withdrawal
of
the rating then assigned to any Note or the rating then assigned to any Note
or
(B) an Opinion of Counsel obtained by the Master Servicer to the effect that
such action will not adversely affect in any material respect the interests
of
any Holders.
(c) If
the
purpose of the amendment is to prevent the imposition of any federal or state
taxes at any time that any Security is outstanding, it shall not be necessary
to
obtain the consent of any Holder, but the Owner Trustee, the Certificate
Registrar and the Certificate Paying Agent shall be furnished with an Opinion
of
Counsel obtained by the Master Servicer that such amendment is necessary or
helpful to prevent the imposition of such taxes and is not materially adverse
to
any Holder.
(d) If
the
purpose of the amendment is to add or eliminate or change any provision of
the
Trust Agreement other than as contemplated in (b) and (c) above, the amendment
shall require (A) an Opinion of Counsel obtained by the Master Servicer to
the
effect that such action will not adversely affect in any material respect the
interests of any Holders of the Securities and (B) either (a) a letter from
the
Rating Agency that the amendment will not result in the downgrading or
withdrawal of the rating then assigned to any Note or the rating then assigned
to any Note or (b) the consent of Holders of Certificates evidencing a majority
Percentage Interest of the Certificates and the Indenture Trustee; provided,
however, that no such amendment shall (i) reduce in any manner the amount of,
or
delay the timing of, payments received that are required to be distributed
on
any Certificate without the consent of the related Certificateholder, or (ii)
reduce the aforesaid percentage of Certificates the Holders of which are
required to consent to any such amendment, without the consent of the Holders
of
all such Certificates then outstanding.
(e) If
the
purpose of the amendment is to provide for the holding of any of the
Certificates in book-entry form, it shall require the consent of Holders of
all
such Certificates then outstanding; provided, that the Opinion of Counsel
specified in subparagraph (a) above shall not be required.
(f) If
the
purpose of the amendment is to provide for the issuance of additional
certificates representing an interest in the Trust, it shall not be necessary
to
obtain the consent of any Holder, but the Owner Trustee shall be furnished
with
(A) an Opinion of Counsel obtained by the Master Servicer to the effect that
such action will not adversely affect in any material respect the interests
of
any Holders and (B) a letter from the Rating Agencies that the amendment will
not result in the downgrading or withdrawal of the rating then assigned to
any
Notes or the rating then assigned to the Notes.
(g) Promptly
after the execution of any such amendment or consent, the Master Servicer shall
furnish written notification of the substance of such amendment or consent
to
each Certificateholder, the Indenture Trustee and each of the Rating Agencies.
It shall not be necessary for the consent of Certificateholders or the Indenture
Trustee pursuant to this Section 10.01 to approve the particular form of any
proposed amendment or consent, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents (and any
other consents of Certificateholders provided for in this Trust Agreement or
in
any other Basic Document) and of evidencing the authorization of the execution
thereof by Certificateholders shall be subject to such reasonable requirements
as the Owner Trustee may prescribe.
(h) In
connection with the execution of any amendment to any agreement to which the
Trust is a party, other than this Trust Agreement, the Owner Trustee shall
be
entitled to receive and conclusively rely upon an Opinion of Counsel to the
effect that such amendment is authorized or permitted by the documents subject
to such amendment and that all conditions precedent in the Basic Documents
for
the execution and delivery thereof by the Trust or the Owner Trustee, as the
case may be, have been satisfied.
(i) No
amendment or agreement affecting the rights or duties of the Certificate
Registrar or the Certificate Paying Agent may be entered into without the
consent of the affected party.
(j) If
the
purpose of the amendment is to add or eliminate or change any provision relating
to the REMIC Conversion function of this Trust Agreement. An amendment subject
to this Section 10.01(j) shall not require the consent of the Noteholders or
Certificateholders, provided, however, the Owner Trustee shall receive from
the
Certificateholder written direction to enter such amendment based on this
Section 10.01(j). The Owner Trustee may rely on such direction in entering
into
the amendment and is under no duty or obligation to determine compliance with
entering into the amendment.
Promptly
after the execution of any amendment to the Certificate of Trust, the Owner
Trustee shall cause the filing of such amendment with the Secretary of State
of
the State of Delaware.
Section
10.02. No
Legal Title to Trust Estate.
The
Certificateholders shall not have legal title to any part of the Trust Estate
solely by virtue of their status as a Certificateholder. The Certificateholders
shall be entitled to receive distributions with respect to their undivided
beneficial interest therein only in accordance with Articles V and VIII. No
transfer, by operation of law or otherwise, of any right, title or interest
of
the Certificateholders to and in their ownership interest in the Trust Estate
shall operate to terminate this Trust Agreement or the trusts hereunder or
entitle any transferee to an accounting or to the transfer to it of legal title
to any part of the Trust Estate.
Section
10.03. Limitations
on Rights of Others.
Except
for Section 2.07, the provisions of this Trust Agreement are solely for the
benefit of the Owner Trustee, the Depositor, the Certificateholders and, to
the
extent expressly provided herein, the Indenture Trustee and the Noteholders,
and
nothing in this Trust Agreement (other than Section 2.07), whether express
or
implied, shall be construed to give to any other Person any legal or equitable
right, remedy or claim in the Trust Estate or under or in respect of this Trust
Agreement or any covenants, conditions or provisions contained
herein.
Section
10.04. Notices.
(a)
Unless
otherwise expressly specified or permitted by the terms hereof, all notices
shall be in writing and shall be deemed given upon receipt, to the Owner Trustee
at: Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: Corporate Trust Administration; to the
Depositor at: CWALT, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; to the Indenture
Trustee, the Certificate Registrar and the Certificate Paying Agent at the
Corporate Trust Office of the Indenture Trustee, with a copy to: The Bank of
New
York, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Trust
MBS Administration, GSC Capital Corp. Alternative Loan Trust Notes, Series
2006-2; to Moody’s at: ▇▇▇▇▇’▇ Investor Services Inc., ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; to Standard & Poor's at: Standard & Poor's, a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., Attention: Mortgage Surveillance
Group, ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; Fitch,
Inc., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇;
or, as
to each party, at such other address as shall be designated by such party in
a
written notice to each other party.
(b) Any
notice required or permitted to be given to a Certificateholder shall be given
by first-class mail, postage prepaid, at the address of such Holder as shown
in
the Certificate Register. Any notice so mailed within the time prescribed in
this Trust Agreement shall be conclusively presumed to have been duly given,
whether or not the Certificateholder receives such notice.
(c) A
copy of
any notice delivered to the Owner Trustee or the Trust shall also be delivered
to the Depositor.
Section
10.05. Severability.
Any
provision of this Trust Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Section
10.06. Separate
Counterparts.
This
Trust Agreement may be executed by the parties hereto in separate counterparts,
each of which when so executed and delivered shall be an original, but all
such
counterparts shall together constitute but one and the same
instrument.
Section
10.07. Successors
and Assigns.
All
representations, warranties, covenants and agreements contained herein shall
be
binding upon, and inure to the benefit of, each of the Depositor, the Owner
Trustee and its successors, and each Certificateholder and its successors and
permitted assigns, all as herein provided. Any request, notice, direction,
consent, waiver or other instrument or action by a Certificateholder shall
bind
the successors and assigns of such Certificateholder.
Section
10.08. No
Petition.
The
Owner Trustee, by entering into this Trust Agreement and each Certificateholder,
by accepting a Certificate, hereby covenant and agree that they will not at
any
time institute against the Depositor or the Trust, or join in any institution
against the Depositor or the Trust of, any bankruptcy proceedings under any
United States federal or state bankruptcy or similar law in connection with
any
obligations to the Certificates, the Notes, this Trust Agreement or any of
the
Basic Documents. This Section shall survive for one year following the
termination of this Trust Agreement.
Section
10.09. No
Recourse.
Each
Certificateholder by accepting a Certificate acknowledges that such
Certificateholder's Certificates represent beneficial interests in the Trust
only and do not represent interests in or obligations of the Depositor, the
Seller, the Owner Trustee, the Indenture Trustee, the Certificate Registrar,
the
Certificate Paying Agent or any Affiliate thereof and no recourse may be had
against such parties or their assets, except as may be expressly set forth
or
contemplated in this Trust Agreement, the Certificates or the Basic
Documents.
Section
10.10. Headings.
The
headings of the various Articles and Sections herein are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
Section
10.11. GOVERNING
LAW.
THIS
TRUST AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
Section
10.12. Integration.
This
Trust Agreement constitutes the entire agreement among the parties hereto
pertaining to the subject matter hereof and supersedes all prior agreements
and
understandings pertaining thereto.
Section
10.13. Intention
of the Parties.
The
Depositor and the Owner Trustee, on behalf of the Issuing Entity, agree that
it
is their intention that the sale of the Mortgage Loans to the Depositor, and
the
Depositor’s sale of the Mortgage Loans to the Issuing Entity pursuant to this
Trust Agreement shall be treated for federal, stated and local tax purposes
as a
transfer directly by the Seller to the Issuing Entity (with the Issuing Entity’s
issuance of the Notes treated for federal, state and local tax purposes as
the
issuance by the Seller of indebtedness secured by the Mortgage Loans) and
mutually covenant to report this and all related transactions for all federal,
state and local tax reporting purposes in a manner consistent with the
intent.
The
Depositor will have the right to review the Mortgage Loans and the Related
Documents to determine the characteristics of the Mortgage Loans which will
affect the federal, state and local tax consequences of owning the Mortgage
Loans and the Issuing Entity will cooperate with all reasonable requests made
by
the Depositor in the course of such review.
IN
WITNESS WHEREOF, the Depositor, the Owner Trustee and the Certificate Registrar
and Certificate Paying Agent have caused their names to be signed hereto by
their respective officers thereunto duly authorized, all as of the day and
year
first above written.
|
CWALT,
INC.,
as
Depositor
|
|||
|
By:
|
|||
|
Name:
▇▇▇▇▇
▇▇▇▇▇▇
|
|||
|
Title:
Vice
President
|
|||
|
WILMINGTON
TRUST COMPANY,
as
Owner Trustee
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
THE
BANK OF NEW YORK,
as
Certificate Registrar and Certificate Paying Agent
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
EXHIBIT
A
FORM
OF
CERTIFICATE
THIS
CERTIFICATE IS SUBORDINATE TO THE NOTES AS DESCRIBED IN THE
INDENTURE.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR
SHALL HAVE RECEIVED A CERTIFICATE OF NON-FOREIGN STATUS CERTIFYING AS TO THE
TRANSFEREE'S STATUS AS A U.S. PERSON OR CORPORATION UNDER U.S.
LAW.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE UNLESS THE CERTIFICATE REGISTRAR
HAS
RECEIVED PROF OF THE TRANSFEREE’S STATUS AS A REIT OR AS A QUALIFIED REIT
SUBSIDIARY.
THIS
CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE SECURITIES ACT
OF
1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE RESOLD
OR
TRANSFERRED UNLESS IT IS REGISTERED PURSUANT TO SUCH ACT AND LAWS OR IS SOLD
OR
TRANSFERRED IN TRANSACTIONS WHICH ARE EXEMPT FROM REGISTRATION UNDER SUCH ACT
AND UNDER APPLICABLE STATE LAW AND IS TRANSFERRED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.04 OF THE TRUST AGREEMENT REFERRED TO
HEREIN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE, UNLESS THE INTENDED TRANSFEREE
CERTIFIES IN THE FORM OF EXHIBIT J TO THE TRUST AGREEMENT TO THE OWNER TRUSTEE,
THE CERTIFICATE REGISTRAR, AND THE INDENTURE TRUSTEE THAT, IN CONNECTION WITH
THE TRANSFER, IT WILL ACQUIRE BOTH THE TRUST CERTIFICATE AND A 100% PERCENTAGE
INTEREST IN EACH CLASS OF PRIVATELY OFFERED NOTES THEN OUTSTANDING, THUS
BECOMING A SINGLE OWNER UPON COMPLETION OF THE TRANSFER. NOTWITHSTANDING THE
FOREGOING, THIS CERTIFICATE MAY BE PLEDGED TO SECURE INDEBTEDNESS AND MAY BE
THE
SUBJECT OF REPURCHASE AGREEMENTS TREATED AS SECURED INDEBTEDNESS FOR FEDERAL
INCOME TAX PURPOSES. UPON A DEFAULT UNDER ANY SUCH INDEBTEDNESS, THE LENDER
OR
REPURCHASE AGREEMENT COUNTERPARTY, AS APPLICABLE, SHALL DELIVER TO THE
CERTIFICATE REGISTRAR, THE OWNER TRUSTEE AND THE INDENTURE TRUSTEE A CERTIFICATE
CERTIFYING THAT A DEFAULT HAS OCCURRED AND THAT A REMIC CONVERSION SHOULD BE
UNDERTAKEN.
NO
TRANSFER OF THIS CERTIFICATE SHALL BE MADE EXCEPT IN ACCORDANCE WITH SECTION
3.05 OF THE TRUST AGREEMENT REFERRED TO HEREIN.
THIS
CERTIFICATE DOES NOT REPRESENT AN INTEREST IN OR OBLIGATION OF THE SELLER,
THE
CERTIFICATE REGISTRAR, THE CERTIFICATE PAYING AGENT, THE DEPOSITOR, THE MASTER
SERVICER, THE INDENTURE TRUSTEE, OR THE OWNER TRUSTEE OR ANY OF THEIR RESPECTIVE
AFFILIATES, EXCEPT AS EXPRESSLY PROVIDED IN THE TRUST AGREEMENT OR THE BASIC
DOCUMENTS.
|
Certificate
No. ___
|
Percentage
Interest: 100%
|
|
Cut-off
Date: June 1, 2006
|
|
|
Date
of Amended and Restated Trust Agreement:
|
|
|
June
23, 2006
|
|
|
Master
Servicer:
|
First
Payment Date:
|
|
Countrywide
Home Loans Servicing LP
|
July
25, 2006
|
|
CUSIP:
[_________]
|
Evidencing
a fractional undivided equity interest in the Owner Trust Estate, the property
of which consists primarily of the Mortgage Loans in GSC Capital Corp. Mortgage
Trust 2006-2 (the “Trust”), a Delaware statutory trust formed by CWALT, Inc., as
depositor, pursuant to the Trust Agreement referred to below.
This
certifies that [_____________] is the registered owner of the Percentage
Interest represented hereby.
The
Trust
was created pursuant to a Short Form Trust Agreement, dated as of June 20,
2006,
between the Depositor and Wilmington Trust Company, as owner trustee (the “Owner
Trustee”, which term includes any successor entity under the Trust Agreement)
(the “Short Form Trust Agreement”) as amended and restated by the Amended and
Restated Trust Agreement dated as of June 23, 2006 (as amended and supplemented
from time to time, together with the Short Form Trust Agreement, the “Trust
Agreement”) among the Depositor, the Owner Trustee and The Bank of New York, as
certificate registrar and certificate paying agent, a summary of certain of
the
pertinent provisions of which is set forth hereinafter. This Certificate is
issued under and is subject to the terms, provisions and conditions of the
Trust
Agreement, to which Trust Agreement the Holder of this Certificate by virtue
of
the acceptance hereof assents and by which such Holder is bound.
This
Certificate is one of a duly authorized issue of Trust Certificates, Series
2006-2 (herein called the “Certificates”) issued under the Trust Agreement to
which reference is hereby made for a statement of the respective rights
thereunder of the Depositor, the Owner Trustee and the Holders of the
Certificates and the terms upon which the Certificates are executed and
delivered. All terms used in this Certificate which are defined in the Trust
Agreement shall have the meanings assigned to them in the Trust Agreement.
The
Owner Trust Estate consists of the Mortgage Loans in the GSC Capital Corp.
Mortgage Trust 2006-2. The rights of the Holders of the Certificates are
subordinated to the rights of the Holders of the Notes, as set forth in the
Indenture.
There
will be distributed on the 25th day of each month or, if such 25th day is not
a
Business Day, the next Business Day (each, a “Payment Date”), commencing on July
25, 2006, to the Person in whose name this Certificate is registered at the
close of business on the last Business Day of the month immediately preceding
such Payment Date (the “Record Date”), such Certificateholder's Percentage
Interest in the amount to be distributed to Certificateholders on such Payment
Date.
The
Certificateholder, by its acceptance of this Certificate, agrees that it will
look solely to the funds on deposit in the Payment Account that have been
released from the Lien of the Indenture for payment hereunder and that neither
the Owner Trustee in its individual capacity nor the Depositor is personally
liable to the Certificateholders for any amount payable under this Certificate
or the Trust Agreement or, except as expressly provided in the Trust Agreement,
subject to any liability under the Trust Agreement.
The
Holder of this Certificate acknowledges and agrees that its rights to receive
distributions in respect of this Certificate are subordinated to the rights
of
the Noteholders as described in the Indenture, dated as of June 1, 2006, between
the Trust, The Bank of New York, as Indenture Trustee (the
“Indenture”).
The
Depositor and each Certificateholder, by acceptance of a Certificate, agree
to
treat, and to take no action inconsistent with the treatment of, the
Certificates for federal, state and local income tax purposes as an equity
interest in the Trust.
Each
Certificateholder, by its acceptance of a Certificate, covenants and agrees
that
such Certificateholder will not at any time institute against the Depositor,
or
join in any institution against the Depositor or the Trust of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar
law
in connection with any obligations relating to the Certificates, the Notes,
the
Trust Agreement or any of the Basic Documents.
Distributions
on this Certificate will be made as provided in the Trust Agreement by the
Certificate Paying Agent by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Certificate or the making of any notation hereon. Except
as
otherwise provided in the Trust Agreement and notwithstanding the above, the
final distribution on this Certificate will be made after due notice by the
Certificate Paying Agent of the pendency of such distribution and only upon
presentation and surrender of this Certificate at the office or agency
maintained by the Certificate Registrar for that purpose by the Trust, as
provided in Section 3.09 of the Trust Agreement.
Notwithstanding
the above, the final distribution on this Certificate will be made after due
notice of the pendency of such distribution and only upon presentation and
surrender of this Certificate at the office or agency specified in such
notice.
No
transfer, sale, pledge or other disposition of a Certificate shall be made
unless such transfer, sale, pledge or other disposition is exempt from the
registration requirements of the Securities Act and any applicable state
securities laws or is made in accordance with said Act and laws. In the event
of
any such transfer, the Certificate Registrar or the Depositor shall prior to
such transfer require the transferee to execute (A) either (i) (a) an investment
letter in substantially the form attached to the Agreement as Exhibit C (or
in
such form and substance reasonably satisfactory to the Certificate Registrar
and
the Depositor) which investment letter shall not be an expense of the Trust,
the
Owner Trustee, the Certificate Registrar, the Master Servicer, the Seller,
CHL
or the Depositor and which investment letter states that, among other things,
such transferee (1) is a “qualified institutional buyer” as defined under Rule
144A, acting for its own account or the accounts of other “qualified
institutional buyers” as defined under Rule 144A, and (2) is aware that the
proposed transferor intends to rely on the exemption from registration
requirements under the Securities Act of 1933, as amended, provided by Rule
144A
or (ii) (a) a written Opinion of Counsel acceptable to and in form and substance
satisfactory to the Certificate Registrar and the Depositor that such transfer
may be made pursuant to an exemption, describing the applicable exemption and
the basis therefor, from said Act and laws or is being made pursuant to said
Act
and laws, which Opinion of Counsel shall not be an expense of the Trust, the
Owner Trustee, the Certificate Registrar, the Master Servicer, the Seller,
CHLr
or the Depositor and (b) the transferee executes a representation letter,
substantially in the form of Exhibit D to the Agreement, and the transferor
executes a representation letter, substantially in the form of Exhibit F to
the
Agreement, each acceptable to and in form and substance satisfactory to the
Certificate Registrar and the Depositor certifying the facts surrounding such
transfer, which representation letters shall not be an expense of the Trust,
the
Owner Trustee, the Certificate Registrar, the Master Servicer, the Seller,
CHL
or the Depositor and (B) the Certificate of Non-Foreign Status (in substantially
the form attached to the Agreement as Exhibit D) acceptable to and in form
and
substance reasonably satisfactory to the Certificate Registrar and the
Depositor, which certificate shall not be an expense of the Trust, the Owner
Trustee, the Certificate Registrar, the Seller, CHL or the Depositor. The Holder
of a Certificate desiring to effect such transfer shall, and does hereby agree
to, indemnify the Trust, the Owner Trustee, the Indenture Trustee, the
Certificate Paying Agent, the Certificate Registrar, the Master Servicer, the
Seller, CHL 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.
No
transfer of Certificates or any interest therein shall be made except in
accordance with Section 3.05 of the Trust Agreement referred to herein.
No
transfer of the Owner Trust Certificate shall be made unless the
intended transferee certifies in the form of Exhibit J to the Trust Agreement
to
the Owner Trustee, the Certificate Registrar and the Indenture Trustee that,
in
connection with such transfer, it will acquire both the Owner Trust Certificate
and a 100% Percentage Interest in each Class of Privately Offered Notes then
outstanding, thus becoming a Single Owner upon completion of such transfer.
Notwithstanding the foregoing, the Owner Trust Certificate may be pledged to
secure indebtedness and may be the subject of repurchase agreements treated
as
secured indebtedness for federal income tax purposes. Upon a default under
any
such indebtedness, the lender or repurchase agreement counterparty, as
applicable, shall deliver to the Certificate Registrar, the Owner Trustee and
the Indenture Trustee a certificate certifying that a default has occurred
and
that a REMIC Conversion should be undertaken.
Reference
is hereby made to the further provisions of this Certificate set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon shall have been executed by an
authorized officer of the Owner Trustee, or an authenticating agent by manual
signature, this Certificate shall not entitle the Holder hereof to any benefit
under the Trust Agreement or be valid for any purpose.
THIS
CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN
ACCORDANCE WITH SUCH LAWS.
IN
WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in its
individual capacity, has caused this Certificate to be duly
executed.
|
BY:
WILMINGTON TRUST COMPANY,
not
in its individual capacity
but
solely as Owner Trustee
|
|||
|
Dated:
June ____, 2006
|
By:
|
||
|
Authorized
Signatory
|
|||
CERTIFICATE
OF AUTHENTICATION
This
is
one of the Certificates referred to in the within mentioned
Agreement.
WILMINGTON
TRUST COMPANY,
not
in
its individual capacity
but
solely as Owner Trustee
| By: |
|
|
|
Authorized
Signatory
|
||
| Or |
|
, |
|
as
Authenticating Agent of the Trust
|
||
| By: |
|
|
|
Authorized
Signatory
|
REVERSE
OF CERTIFICATE
The
Certificates do not represent an obligation of, or an interest in, the
Depositor, the Seller, the Master Servicer, CHL, the Indenture Trustee, the
Certificate Paying Agent, the Certificate Registrar, the Owner Trustee or any
Affiliates of any of them and no recourse may be had against such parties or
their assets, except as expressly set forth or contemplated herein or in the
Trust Agreement or the Basic Documents. In addition, this Certificate is not
guaranteed by any governmental agency or instrumentality and is limited in
right
of payment to certain collections and recoveries with respect to the Mortgage
Loans, all as more specifically set forth herein and in the Trust Agreement.
A
copy of the Trust Agreement may be examined by any Certificateholder upon
written request during normal business hours at the principal office of the
Depositor and at such other places, if any, designated by the
Depositor.
The
Trust
Agreement permits the amendment thereof as specified below, provided that any
amendment be accompanied by an Opinion of Counsel to the Owner Trustee to the
effect that such amendment complies with the provisions of the Trust Agreement
and, if [____________] was not the Majority Certificateholder, would not cause
the Trust to be subject to an entity level tax. If the purpose of the amendment
is to correct any mistake, eliminate any inconsistency, cure any ambiguity
or
deal with any matter not covered, it shall not be necessary to obtain the
consent of any Holder, but the Owner Trustee shall be furnished with a letter
from each of the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to any Note or the rating
then assigned to any Note. If the purpose of the amendment is to prevent the
imposition of any federal or state taxes at any time that any Security is
outstanding, it shall not be necessary to obtain the consent of the any Holder,
but the Owner Trustee shall be furnished with an Opinion of Counsel that such
amendment is necessary or helpful to prevent the imposition of such taxes and
is
not materially adverse to any Holder. If the purpose of the amendment is to
add
or eliminate or change any provision of the Trust Agreement, other than as
specified in the preceding two sentences, the amendment shall require either
(a)
a letter from each of the Rating Agencies that the amendment will not result
in
the downgrading or withdrawal of the rating then assigned to any Note or the
rating then assigned to any Note or (b) the consent of Holders of the
Certificates evidencing a majority of the Percentage Interests of the
Certificates and the Indenture Trustee; provided,
however,
that no
such amendment shall (i) reduce in any manner the amount of, or delay the time
of, payments received that are required to be distributed on any Certificate
without the consent of the related Certificateholder, or (ii) reduce the
aforesaid percentage of Certificates the Holders of which are required to
consent to any such amendment without the consent of the Holders of all such
Certificates then outstanding.
As
provided in the Trust Agreement and subject to certain limitations therein
set
forth, the transfer of this Certificate is registerable in the Certificate
Register upon surrender of this Certificate for registration of transfer at
the
offices or agencies of the Certificate Registrar maintained by the Trust, as
provided in the Trust Agreement, accompanied by a written instrument of transfer
in form satisfactory to the Certificate Registrar duly executed by the Holder
hereof or such Holder's attorney duly authorized in writing, and thereupon
one
or more new Certificates of authorized denominations evidencing the same
aggregate interest in the Trust will be issued to the designated transferee.
The
initial Certificate Registrar appointed under the Trust Agreement is The Bank
of
New York.
Except
as
provided in the Trust Agreement, the Certificates are issuable only in a minimum
Certificate Percentage Interest of 10%. As provided in the Trust Agreement
and
subject to certain limitations therein set forth, Certificates are exchangeable
for new Certificates of authorized denominations evidencing the same aggregate
denomination, as requested by the Holder surrendering the same. No service
charge will be made for any such registration of transfer or exchange, but
the
Owner Trustee or the Certificate Registrar may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection
therewith.
The
Owner
Trustee, the Certificate Paying Agent, the Certificate Registrar and any agent
of the Owner Trustee, the Certificate Paying Agent, or the Certificate Registrar
may treat the Person in whose name this Certificate is registered as the owner
hereof for all purposes, and none of the Owner Trustee, the Certificate Paying
Agent, the Certificate Registrar or any such agent shall be affected by any
notice to the contrary.
The
obligations and responsibilities created by the Trust Agreement and the Trust
created thereby shall terminate as and when provided in accordance with the
terms of the Trust Agreement.
ASSIGNMENT
FOR
VALUE
RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
(Please
print or type name and address, including postal zip code, of
assignee)
the
within Certificate, and all rights thereunder, hereby irrevocably constituting
and appointing
to
transfer said Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:
|
*/
|
||||
|
Signature
Guaranteed
|
||||
|
*/
|
||||
*/
NOTICE:
The signature to this assignment must correspond with the name as it appears
upon the face of the within Certificate in every particular, without alteration,
enlargement or any change whatever. Such signature must be guaranteed by a
member firm of the New York Stock Exchange or a commercial bank or trust
company.
DISTRIBUTION
INSTRUCTIONS
The
assignee should include the following for the information of the Certificate
Paying Agent:
Distributions
shall be made, by wire transfer or otherwise, in immediately available funds
|
to
|
,
|
||||
|
for
the account of
|
,
|
||||
|
account
number___________, or, if mailed by check, to
|
,
|
||||
|
Applicable
statements should be mailed to
|
.
|
||||
|
Signature
of assignee or agent
(for
authorization of wire transfer
only)
|
EXHIBIT
B
CERTIFICATE
OF TRUST OF
GSC
Capital Corp. Mortgage Trust 2006-2
THIS
Certificate of Trust of GSC Capital Corp. Mortgage Trust 2006-2 (the “Trust”),
dated June 20, 2006, is being duly executed and filed by Wilmington Trust
Company, a Delaware banking corporation, as trustee, to form a statutory trust
under the Delaware Statutory Trust Act (12 Del.
Code,
§
3801
et
seq.).
1. Name.
The
name of the statutory trust formed hereby is GSC Capital Corp. Mortgage Trust
2006-2.
2. Delaware
Trustee.
The
name and business address of the trustee of the Trust in the State of Delaware
is Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
IN
WITNESS WHEREOF, the undersigned, being the sole trustee of the Trust, has
executed this Certificate of Trust as of the date first above
written.
|
Wilmington
Trust Company,
|
||
|
not
in its individual capacity but solely as owner trustee under a Trust
Agreement dated as of June ___, 2006
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
C
[FORM
OF
RULE 144A INVESTMENT REPRESENTATION]
Description
of Rule 144A Securities, including numbers:
The
undersigned seller, as registered holder (the “Seller”), intends to transfer the
Rule 144A Securities described above to the undersigned buyer (the
“Buyer”).
1. In
connection with such transfer and in accordance with the agreements pursuant
to
which the Rule 144A Securities were issued, the Seller hereby certifies the
following facts: Neither the Seller nor anyone acting on its behalf has offered,
transferred, pledged, sold or otherwise disposed of the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security to,
or
solicited any offer to buy or accept a transfer, pledge or other disposition
of
the Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security from, or otherwise approached or negotiated with respect to
the
Rule 144A Securities, any interest in the Rule 144A Securities or any other
similar security with, any person in any manner, or made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, that would constitute a distribution of the Rule 144A
Securities under the Securities Act of 1933, as amended (the “1933 Act”), or
that would render the disposition of the Rule 144A Securities a violation of
Section 5 of the 1933 Act or require registration pursuant thereto, and that
the
Seller has not offered the Rule 144A Securities to any person other than the
Buyer or another “qualified institutional buyer” as defined in Rule 144A under
the ▇▇▇▇ ▇▇▇.
2. The
Buyer
warrants and represents to, and covenants with, the Owner Trustee and the
Depositor (as defined in the Amended and Restated Trust Agreement (the
“Agreement”), dated as of June 23, 2006, among CWALT, Inc., as Depositor,
Wilmington Trust Company, as Owner Trustee and The Bank of New York, as
Certificate Registrar and Certificate Paying Agent) pursuant to Section 3.05
of
the Agreement and The Bank of New York, as indenture trustee, as
follows:
a. The
Buyer
understands that the Rule 144A Securities have not been registered under the
1933 Act or the securities laws of any state.
b. The
Buyer
considers itself a substantial, sophisticated institutional investor having
such
knowledge and experience in financial and business matters that it is capable
of
evaluating the merits and risks of investment in the Rule 144A
Securities.
c. The
Buyer
has been furnished with all information regarding the Rule 144A Securities
that
it has requested from the Seller, CHL, the Indenture Trustee, the Owner Trustee
or the Master Servicer.
d. Neither
the Buyer nor anyone acting on its behalf has offered, transferred, pledged,
sold or otherwise disposed of the Rule 144A Securities, any interest in the
Rule
144A Securities or any other similar security to, or solicited any offer to
buy
or accept a transfer, pledge or other disposition of the Rule 144A Securities,
any interest in the Rule 144A Securities or any other similar security from,
or
otherwise approached or negotiated with respect to the Rule 144A Securities,
any
interest in the Rule 144A Securities or any other similar security with, any
person in any manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action, that would
constitute a distribution of the Rule 144A Securities under the 1933 Act or
that
would render the disposition of the Rule 144A Securities a violation of Section
5 of the 1933 Act or require registration pursuant thereto, nor will it act,
nor
has it authorized or will it authorize any person to act, in such manner with
respect to the Rule 144A Securities.
e. The
Buyer
is a “qualified institutional buyer” as that term is defined in Rule 144A under
the 1933 Act and has completed either of the forms of certification to that
effect attached hereto as Annex 1 or Annex 2. The Buyer is aware that the sale
to it is being made in reliance on Rule 144A. The Buyer is acquiring the Rule
144A Securities for its own account or the accounts of other qualified
institutional buyers, understands that such Rule 144A Securities may be resold,
pledged or transferred only (i) to a person reasonably believed to be a
qualified institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that the
resale, pledge or transfer is being made in reliance on Rule 144A, or (ii)
pursuant to another exemption from registration under the 1933 Act.
3. The
Buyer
warrants and represents to, and covenants with, the Seller, the Certificate
Registrar, Owner Trustee, Master Servicer, CHL and the Depositor that either
(1)
the Buyer is (A) not an employee benefit plan (within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended
(“ERISA”)), or a plan (within the meaning of Section 4975(e)(1) of the Internal
Revenue Code of 1986 (“Code”)), which (in either case) is subject to ERISA or
Section 4975 of the Code (each, a “Plan”), and (B) is not directly or indirectly
purchasing the Rule 144A Securities on behalf of, as investment manager of,
as
named fiduciary of, as trustee of, or with “plan assets” of a Plan, or (2) the
Buyer understands that registration of transfer of any Rule 144A Securities
to
any Plan, or to any Person acting on behalf of any Plan, will not be made unless
such Plan delivers an opinion of its counsel, addressed and satisfactory to
the
Seller, CHL, the Certificate Registrar, the Owner Trustee, the Master Servicer
and the Depositor, to the effect that the purchase and holding of the Rule
144A
Securities by, on behalf of or with “plan assets” of any Plan is permissible
under applicable law, would not constitute or result in a prohibited transaction
under ERISA or Section 4975 of the Code, and would not subject the Seller,
CHL,
the Depositor, the Owner Trustee, the Certificate Registrar or the Master
Servicer to any obligation or liability (including liabilities under ERISA
or
Section 4975 of the Code) in addition to those undertaken in the Agreement,
which Opinion of Counsel shall not be an expense of the Seller, CHL, the
Depositor, the Owner Trustee, the Certificate Registrar or the Master
Servicer.
4. This
document may be executed in one or more counterparts and by the different
parties hereto on separate counterparts, each of which, when so executed, shall
be deemed to be an original; such counterparts, together, shall constitute
one
and the same document.
IN
WITNESS WHEREOF, each of the parties has executed this document as of the date
set forth below.
|
Print
Name of Seller
|
Print
Name of Buyer
|
|||
|
By
|
By
|
|||
|
Name:
|
Name:
|
|||
|
Title:
|
Title:
|
|||
|
Taxpayer
Identification:
|
Taxpayer
Identification:
|
|||
|
No.
|
No.
|
|||
|
Date:
|
Date:
|
|||
ANNEX
1 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers Other Than Registered Investment Companies]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1. As
indicated below, the undersigned is the President, Chief Financial Officer,
Senior Vice President or other executive officer of the Buyer.
2. In
connection with purchases by the Buyer, the Buyer is a “qualified institutional
buyer” as that term is defined in Rule 144A under the Securities Act of 1933
(“Rule 144A”) because (i) the Buyer owned and/or invested on a discretionary
basis $ 1
in
securities (except for the excluded securities referred to below) as of the
end
of the Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A) and (ii) the Buyer satisfies the criteria in the
category marked below.
|
___
|
Corporation,
etc.
The Buyer is a corporation (other than a bank, savings and loan
association or similar institution), Massachusetts or similar business
trust, partnership, or charitable organization described in Section
501(c)(3) of the Internal Revenue
Code.
|
|
___
|
Bank.
The Buyer (a) is a national bank or banking institution organized
under
the laws of any State, territory or the District of Columbia, the
business
of which is substantially confined to banking and is supervised by
the
State or territorial banking commission or similar official or is
a
foreign bank or equivalent institution, and (b) has an audited net
worth
of at least $25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached
hereto.
|
|
___
|
Savings
and Loan.
The Buyer (a) is a savings and loan association, building and loan
association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a State or Federal
authority having supervision over any such institutions or is a foreign
savings and loan association or equivalent institution and (b) has
an
audited net worth of at least $25,000,000 as demonstrated in its
latest
annual financial statements.
|
|
___
|
Broker-Dealer.
The Buyer is a dealer registered pursuant to Section 15 of the Securities
Exchange Act of 1934.
|
|
___
|
Insurance
Company.
The Buyer is an insurance company whose primary and predominant business
activity is the writing of insurance or the reinsuring of risks
underwritten by insurance companies and which is subject to supervision
by
the insurance commissioner or a similar official or agency of a State
or
territory or the District of
Columbia.
|
|
___
|
State
or Local Plan.
The Buyer is a plan established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or its
political subdivisions, for the benefit of its
employees.
|
|
___
|
ERISA
Plan.
The Buyer is an employee benefit plan within the meaning of Title
I of the
Employee Retirement Income Security Act of
1974.
|
|
___
|
Investment
Adviser.
The Buyer is an investment adviser registered under the Investment
Advisers Act of 1940.
|
|
___
|
SBIC.
The Buyer is a Small Business Investment Company licensed by the
U.S.
Small Business Administration under Section 301(c) or (d) of the
Small
Business Investment Act of 1958.
|
|
___
|
Business
Development Company.
The Buyer is a business development company as defined in Section
202(a)(22) of the Investment Advisers Act of
1940.
|
|
___
|
Trust
Fund.
The Buyer is a trust fund whose trustee is a bank or trust company
and
whose participants are exclusively (a) plans established and maintained
by
a State, its political subdivisions, or any agency or instrumentality
of
the State or its political subdivisions, for the benefit of its employees,
or (b) employee benefit plans within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, but is not a trust
fund
that includes as participants individual retirement accounts or H.R.
10
plans.
|
3. The
term
“securities”
as
used
herein does
not include
(i)
securities of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if the Buyer
is
a dealer, (iii) bank deposit Notes and certificates of deposit, (iv) loan
participations, (v) repurchase agreements, (vi) securities owned but subject
to
a repurchase agreement and (vii) currency, interest rate and commodity
swaps.
4. For
purposes of determining the aggregate amount of securities owned and/or invested
on a discretionary basis by the Buyer, the Buyer used the cost of such
securities to the Buyer and did not include any of the securities referred
to in
the preceding paragraph. Further, in determining such aggregate amount, the
Buyer may have included securities owned by subsidiaries of the Buyer, but
only
if such subsidiaries are consolidated with the Buyer in its financial statements
prepared in accordance with generally accepted accounting principles and if
the
investments of such subsidiaries are managed under the Buyer's direction.
However, such securities were not included if the Buyer is a majority-owned,
consolidated subsidiary of another enterprise and the Buyer is not itself a
reporting company under the Securities Exchange Act of 1934.
5. The
Buyer
acknowledges that it is familiar with Rule 144A and understands that the seller
to it and other parties related to the Owner Trust Certificates are relying
and
will continue to rely on the statements made herein because one or more sales
to
the Buyer may be in reliance on Rule 144A.
|
Will
the Buyer be purchasing the Rule 144A
|
||||
|
Yes
|
No
|
Securities
only for the Buyer's own account?
|
||
6. If
the
answer to the foregoing question is “no”, the Buyer agrees that, in connection
with any purchase of securities sold to the Buyer for the account of a third
party (including any separate account) in reliance on Rule 144A, the Buyer
will
only purchase for the account of a third party that at the time is a “qualified
institutional buyer” within the meaning of Rule 144A. In addition, the Buyer
agrees that the Buyer will not purchase securities for a third party unless
the
Buyer has obtained a current representation letter from such third party or
taken other appropriate steps contemplated by Rule 144A to conclude that such
third party independently meets the definition of “qualified institutional
buyer” set forth in Rule 144A.
7. The
Buyer
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein. Until such notice is given,
the Buyer's purchase of Rule 144A Securities will constitute a reaffirmation
of
this certification as of the date of such purchase.
|
Print
Name of Buyer
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
Date:
|
|||
1 Buyer
must own and/or invest on a discretionary basis at least $100,000,000
in
securities unless Buyer is a dealer, and, in that case, Buyer must own
and/or
invest on a discretionary basis at least $10,000,000 in securities.
ANNEX
2 TO EXHIBIT C
QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For
Buyers That Are Registered Investment Companies]
The
undersigned hereby certifies as follows in connection with the Rule 144A
Investment Representation to which this Certification is attached:
1. As
indicated below, the undersigned is the President, Chief Financial Officer
or
Senior Vice President of the Buyer or, if the Buyer is a “qualified
institutional buyer” as that term is defined in Rule 144A under the Securities
Act of 1933 (“Rule 144A”) because Buyer is part of a Family of Investment
Companies (as defined below), is such an officer of the Adviser.
2. In
connection with purchases by Buyer, the Buyer is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Buyer is an investment
company registered under the Investment Company Act of 1940, and (ii) as marked
below, the Buyer alone, or the Buyer's Family of Investment Companies, owned
at
least $100,000,000 in securities (other than the excluded securities referred
to
below) as of the end of the Buyer's most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the Buyer's Family
of
Investment Companies, the cost of such securities was used.
| ___ |
The
Buyer owned $_______________
in
securities (other than the excluded securities referred to below)
as of
the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule 144A).
|
| ___ |
The
Buyer is part of a Family of Investment Companies which owned in
the
aggregate $_______________ in
securities (other than the excluded securities referred to below)
as of
the end of the Buyer's most recent fiscal year (such amount being
calculated in accordance with Rule
144A).
|
3. The
term
“Family
of Investment Companies”
as
used
herein means two or more registered investment companies (or series thereof)
that have the same investment adviser or investment advisers that are affiliated
(by virtue of being majority owned subsidiaries of the same parent or because
one investment adviser is a majority owned subsidiary of the
other).
4. The
term
“securities”
as
used
herein does not include (i) securities of issuers that are affiliated with
the
Buyer or are part of the Buyer's Family of Investment Companies, (ii) bank
deposit Notes and certificates of deposit, (iii) loan participations, (iv)
repurchase agreements, (v) securities owned but subject to a repurchase
agreement and (vi) currency, interest rate and commodity swaps.
5. The
Buyer
is familiar with Rule 144A and understands that each of the parties to which
this certification is made are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer will be in
reliance on Rule 144A. In addition, the Buyer will only purchase for the Buyer's
own account.
6. The
undersigned will notify each of the parties to which this certification is
made
of any changes in the information and conclusions herein. Until such notice,
the
Buyer's purchase of Rule 144A Securities will constitute a reaffirmation of
this
certification by the undersigned as of the date of such purchase.
|
Print
Name of Buyer
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
IF
AN ADVISER:
|
||
|
Print
Name of Buyer
|
||
|
Date:
|
||
EXHIBIT
D
CERTIFICATE
OF NON-FOREIGN STATUS
This
Certificate of Non-Foreign Status (“certificate”) is delivered pursuant to
Section 3.03 of the Amended and Restated Trust Agreement, dated as of June
23,
2006 (the “Trust Agreement”), among CWALT, Inc., as Depositor, Wilmington Trust
Company, as Owner Trustee and The Bank of New York, as Certificate Registrar
and
Certificate Paying Agent, in connection with the acquisition of, transfer to
or
possession by the undersigned, whether as beneficial owner for U.S. federal
income tax purposes (the “Beneficial Owner”), or nominee on behalf of the
Beneficial Owner of the GSC Capital Corp. Mortgage Trust 2006-2, Certificates,
Series 2006-2 (the “Certificate”). Capitalized terms used but not defined in
this certificate have the respective meanings given them in the Trust
Agreement.
Each
holder must complete Part I, Part II (if the holder is a nominee), and in all
cases sign and otherwise complete Part III.
In
addition, each holder shall submit with the Certificate an IRS Form W-9 relating
to such holder.
To
confirm to the Trust that the provisions of Sections 871, 881 or 1446 of the
Internal Revenue Code (relating to withholding tax on foreign partners) do
not
apply in respect of the Certificate held by the undersigned, the undersigned
hereby certifies:
|
Part
I -
|
Complete
Either A or B
|
||
|
A.
|
Individual
as Beneficial Owner
|
||
|
1.
|
I
am (The Beneficial Owner is) not a non-resident alien for purposes
of U.S.
income taxation;
|
||
|
2.
|
My
(The Beneficial Owner's) name and home address are:
|
||
|
;
and
|
|||
|
3.
|
My
(The Beneficial Owner's) U.S. taxpayer identification number (Social
Security Number) is
|
||
|
B.
|
Corporate,
Partnership or Other Entity as Beneficial Owner
|
||
|
1.
|
__________________
(Name of the Beneficial Owner) is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as those terms are
defined
in the Code and Treasury Regulations;
|
||
|
2.
|
The
Beneficial Owner's office address and place of incorporation (if
applicable) is
|
||
|
;
and
|
|||
|
3.
|
The
Beneficial Owner's U.S. employer identification number is
__________________.
|
||
|
Part
II -
|
Nominees
|
||
If
the
undersigned is the nominee for the Beneficial Owner, the undersigned certifies
that this certificate has been made in reliance upon information contained
in:
|
an
IRS Form W-9
|
|
|
a
form such as this or substantially
similar
|
provided
to the undersigned by an appropriate person and (i) the undersigned agrees
to
notify the Certificate Registrar at least thirty (30) days prior to the date
that the form relied upon becomes obsolete, and (ii) in connection with change
in Beneficial Owners, the undersigned agrees to submit a new Certificate of
Non-Foreign Status to the Certificate Registrar promptly after such
change.
|
Part
III -
|
Declaration
|
The
undersigned, as the Beneficial Owner or a nominee thereof, agrees to notify
the
Certificate Registrar within sixty (60) days of the date that the Beneficial
Owner becomes a foreign person. The undersigned understands that this
certificate may be disclosed to the Internal Revenue Service by the Certificate
Registrar and any false statement contained therein could be punishable by
fines, imprisonment or both.
Under
penalties of perjury, I declare that I have examined this certificate and to
the
best of my knowledge and belief it is true, correct and complete and will
further declare that I will inform the Trust of any change in the information
provided above, and, if applicable, I further declare that I have the authority*
to sign this document.
|
Name
|
|
|
Title
(if applicable)
|
|
|
Signature
and Date
|
*Note:
If
signed pursuant to a power of attorney, the power of attorney must accompany
this certificate.
EXHIBIT
E
FORM
OF
INVESTMENT LETTER [NON-RULE 144A]
[DATE]
Wilmington
Trust Company, as Owner Trustee
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The
Bank
of New York
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
Re:
|
GSC
Capital Corp. Mortgage Trust 2006-2 Trust Certificates, Series 2006-2
(the
“Certificates”)
|
Ladies
and Gentlemen:
In
connection with our acquisition of the above-captioned Certificates, we certify
that (a) we understand that the Certificates are not being registered under
the
Securities Act of 1933, as amended (the “Act”), or any state securities laws and
are being transferred to us in a transaction that is exempt from the
registration requirements of the Act and any such laws, (b) we are an
“accredited investor,” as defined in Regulation D under the Act, and have such
knowledge and experience in financial and business matters that we are capable
of evaluating the merits and risks of investments in the Certificates, (c)
we
have had the opportunity to ask questions of and receive answers from the
Depositor concerning the purchase of the Certificates and all matters relating
thereto or any additional information deemed necessary to our decision to
purchase the Certificates, (d) we are not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as amended,
or a
plan that is subject to Section 4975 of the Internal Revenue Code of 1986,
as
amended, nor are we acting on behalf of any such plan, (e) we are acquiring
the
Certificates for investment for our own account and not with a view to any
distribution of such Certificates (but without prejudice to our right at all
times to sell or otherwise dispose of the Certificates in accordance with clause
(g) below), (f) we have not offered or sold any Certificates to, or solicited
offers to buy any Certificates from, any person, or otherwise approached or
negotiated with any person with respect thereto, or taken any other action
which
would result in a violation of Section 5 of the Act, and (g) we will not sell,
transfer or otherwise dispose of any Certificates unless (1) such sale, transfer
or other disposition is made pursuant to an effective registration statement
under the Act or is exempt from such registration requirements, and if
requested, we will at our expense provide an opinion of counsel satisfactory
to
the addressees of this certificate that such sale, transfer or other disposition
may be made pursuant to an exemption from the Act, (2) the purchaser or
transferee of such Certificate has executed and delivered to you a certificate
to substantially the same effect as this certificate, and (3) the purchaser
or
transferee has otherwise complied with any conditions for transfer set forth
in
the Trust Agreement.
|
Very
truly yours,
|
||
|
[TRANSFEREE]
|
||
|
By:
|
||
|
Authorized
Officer
|
||
EXHIBIT
F
TRANSFEROR
CERTIFICATE
Wilmington
Trust Company, as Owner Trustee
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The
Bank
of New York
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Proposed
Transfer of Certificates,
GSC
Capital Corp. Mortgage Trust ▇▇▇▇-▇
|
▇▇▇▇▇▇▇▇▇:
This
certification is being made by____________________
(the
“Transferor”) in connection with the proposed Transfer to _____________________
(the “Transferee”) of a trust certificate (the “Certificate”) representing ___%
fractional undivided interest in GSC Capital Corp. Mortgage Trust 2006-2 (the
“Trust”) created pursuant to a Trust Agreement, dated as of June 20, 2006 (such
agreement, as amended by the Amended and Restated Trust Agreement, dated June
23, 2006, being referred to herein as the “Trust Agreement”) among CWALT, Inc.
(the “Company”), Wilmington Trust Company, as Owner Trustee (the “Owner
Trustee”) and The Bank of New York, as certificate registrar and certificate
paying agent (the “Certificate Registrar”). Initially capitalized terms used but
not defined herein have the meanings assigned to them in the Deposit Trust
Agreement. The Transferor hereby certifies, represents and warrants to, and
covenants with, the Company, the Owner Trustee and the Certificate Registrar
that:
Neither
the Transferor nor anyone acting on its behalf has (a) offered, pledged, sold,
disposed of or otherwise transferred any Trust Certificate, any interest in
any
Trust Certificate or any other similar security to any person in any manner,
(b)
has solicited any offer to buy or to accept a pledge, disposition or other
transfer of any Trust Certificate, any interest in any Trust Certificate or
any
other similar security from any person in any manner, (c) has otherwise
approached or negotiated with respect to any Trust Certificate, any interest
in
any Trust Certificate or any other similar security with any person in any
manner, (d) has made any general solicitation by means of general advertising
or
in any other manner, or (e) has taken any other action, that (as to any of
(a)
through (e) above) would constitute a distribution of the Trust Certificates
under the Securities Act of 1933 (the “Act”), that would render the disposition
of any Trust Certificate a violation of Section 5 of the Act or any state
securities law, or that would require registration or qualification pursuant
thereto. The Transferor will not act in any manner set forth in the foregoing
sentence with respect to any Trust Certificate. The Transferor has not and
will
not sell or otherwise transfer any of the Trust Certificates, except in
compliance with the provisions of the Trust Agreement.
|
Date:
|
|||
|
Name
of Transferor
|
|||
|
Signature
|
|||
|
Name
|
|||
|
Title
|
|||
EXHIBIT
G
[DATE]
Wilmington
Trust Company, as Owner Trustee
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The
Bank
of New York
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
Re:
|
Proposed
Transfer of Trust Certificates,
GSC
Capital Corp. Mortgage Trust 2006-2 (the
“Certificates”)
|
Gentlemen:
This
certification is being made by ____________
(the
“Transferee”) in connection with the proposed Transfer by ____________
(the
“Transferor”) of a trust certificate (the “Trust Certificate”) representing __%
fractional undivided interest in GSC Capital Corp. Mortgage Trust 2006-2 (the
“Trust”) created pursuant to a Trust Agreement, dated as of June 20, 2006 (such
agreement, as amended by the Amended and Restated Trust Agreement, dated June
23, 2006, being referred to herein as the “Trust Agreement”) among CWALT, Inc.
(the “Company”), Wilmington Trust Company, as Owner Trustee (the “Owner
Trustee”) and The Bank of New York, as certificate registrar and certificate
paying agent (the “Certificate Registrar”). Initially capitalized terms used but
not defined herein have the meanings assigned to them in the Trust Agreement.
The Transferor hereby certifies, represents and warrants to, and covenants
with,
the Company, the Owner Trustee and the Certificate Registrar that:
|
(i)
|
either
(a) or (b) is satisfied, as marked
below:
|
___ a. The
Transferor is not any employee benefit plan or other plan subject to the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
Section 4975 of the Internal Revenue Code of 1986 (the “Code”) (each, a “Plan”),
a Person acting, directly or indirectly, on behalf of a Plan or any Person
acquiring such Trust 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; or
___ b. The
Transferor is a Plan, a Person acting, directly or indirectly, on behalf of
a
Plan or any Person acquiring such Trust 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 and will provide the Depositor, the Seller, CHL, the Owner
Trustee, the Certificate Registrar and the Master Servicer with an Opinion
of
Counsel, satisfactory to the Depositor, the Seller, CHL, the Owner Trustee,
the
Certificate Registrar and the Master Servicer, to the effect that the purchase
and holding of a Trust Certificate by or on behalf of the Transferor is
permissible under applicable law, will not constitute or result in a prohibited
transaction under Section 406 of ERISA or Section 4975 of the Code (or
comparable provisions of any subsequent enactments) and will not subject the
Depositor, the Seller, CHL, the Owner Trustee, the Certificate Registrar or
the
Master Servicer to any obligation or liability (including liabilities under
ERISA or Section 4975 of the Code) in addition to those undertaken in the Trust
Agreement, which opinion of counsel shall not be an expense of the Depositor,
the Seller, CHL, the Owner Trustee, the Certificate Registrar or the Master
Servicer; and
(ii) the
Transferor is familiar with the prohibited transaction restrictions and
fiduciary responsibility requirements of Sections 406 and 407 of ERISA and
Section 4975 of the Code and understands that each of the parties to which
this
certification is made is relying and will continue to rely on the statements
made in this paragraph.
|
Very
truly yours,
|
|||||||||||||
|
By:
|
|||||||||||||
|
Name:
|
|||||||||||||
|
Title:
|
|||||||||||||
EXHIBIT
H
TRANSFER
AFFIDAVIT
|
STATE
OF_____________
|
)
|
|
|
)
|
ss.:
|
|
|
COUNTY
OF___________
|
)
|
The
undersigned, being first duly sworn, deposes and says as follows:
1. The
undersigned is an officer of __________, the proposed transferee of an Ownership
Interest in a Trust Certificate (the “Certificate”) issued pursuant to the
Amended and Restated Trust Agreement, dated as of June
23,
2006
(the
“Agreement”), by and among CWALT, Inc., as Depositor (the “Depositor”),
Wilmington Trust Company, as Owner Trustee and The Bank of New York, as
Certificate Registrar and Certificate Paying Agent. Capitalized terms used,
but
not defined herein or in Exhibit 1 hereto, shall have the meanings ascribed
to
such terms in the Indenture, dated as of June 23, 2006, by and between GSC
Capital Corp. Mortgage Trust 2006-2, as Issuing Entity (the “Issuing Entity”)
and The Bank of New York, as Indenture Trustee (the “Indenture Trustee”). The
transferee has authorized the undersigned to make this affidavit on behalf
of
the transferee.
2. Either
(a) the transferee is not an employee benefit plan or other plan that is subject
to Section 406 of ERISA or to Section 4975 of the Internal Revenue Code of
1986,
nor is it acting on behalf of or with plan assets of any such plan, or (b)
the
transferee has provided the opinion of counsel specified in Section [ ] of
the
Agreement. The transferee is, as of the date hereof, and will be, as of the
date
of the Transfer, a Permitted Transferee. The transferee is acquiring its
Ownership Interest in the Certificate for its own account.
3. The
transferee has been advised of, and understands that (i) a tax will be imposed
on Transfers of the Certificate to Persons that are not Permitted Transferees;
(ii) such tax will be imposed on the transferor, or, if such Transfer is through
an agent (which includes a broker, nominee or middleman) for a Person that
is
not a Permitted Transferee, on the agent; and (iii) the Person otherwise liable
for the tax shall be relieved of liability for the tax if the subsequent
transferee furnished to such Person an affidavit that such subsequent transferee
is a Permitted Transferee and, at the time of Transfer, such Person does not
have actual knowledge that the affidavit is false.
4. The
transferee has been advised of, and understands that a tax will be imposed
on a
“pass-through entity” holding the Certificate if at any time during the taxable
year of the pass-through entity a Person that is not a Permitted Transferee
is
the record holder of an interest in such entity. The transferee understands
that
such tax will not be imposed for any period with respect to which the record
holder furnishes to the pass-through entity an affidavit that such record holder
is a Permitted Transferee and the pass-through entity does not have actual
knowledge that such affidavit is false. (For this purpose, a “pass-through
entity” includes a regulated investment company, a real estate investment trust
or common trust fund, a partnership, trust or estate, and certain cooperatives
and, except as may be provided in Treasury Regulations, persons holding
interests in pass-through entities as a nominee for another
Person.)
5. The
transferee has reviewed the provisions of Section [ ] of the Agreement (attached
hereto as Exhibit 2 and incorporated herein by reference) and understands the
legal consequences of the acquisition of an Ownership Interest in the
Certificate including, without limitation, the restrictions on subsequent
Transfers and the provisions regarding voiding the Transfer and mandatory sales.
The transferee expressly agrees to be bound by and to abide by the provisions
of
Section [ ] of the Agreement and the restrictions noted on the face of the
Certificate. The transferee understands and agrees that any breach of any of
the
representations included herein shall render the Transfer to the transferee
contemplated hereby null and void.
6. The
transferee agrees to require a Transfer Affidavit from any Person to whom the
transferee attempts to Transfer its Ownership Interest in the Certificate,
and
in connection with any Transfer by a Person for whom the transferee is acting
as
nominee, trustee or agent, and the transferee will not Transfer its Ownership
Interest or cause any Ownership Interest to be Transferred to any Person that
the transferee knows is not a Permitted Transferee. In connection with any
such
Transfer by the transferee, the transferee agrees to deliver to the Trustee
a
certificate substantially in the form set forth as Exhibit I to the Agreement
(a
“Transferor Certificate”) to the effect that such transferee has no actual
knowledge that the Person to which the Transfer is to be made is not a Permitted
Transferee.
7. The
transferee does not have the intention to impede the assessment or collection
of
any tax legally required to be paid with respect to the Trust
Certificates.
8. The
transferee’s taxpayer identification number is __________________.
9. The
transferee is a U.S. Person as defined in Code section 7701(a)(30).
10. The
transferee is aware that the Trust Certificates may be “noneconomic residual
interests” within the meaning of proposed Treasury regulations promulgated
pursuant to the Code and that the transferor of a noneconomic residual interest
will remain liable for any taxes due with respect to the income on such residual
interest, unless no significant purpose of the transfer was to impede the
assessment or collection of tax. In addition, as the holder of a noneconomic
residual interest, the transferee may incur tax liabilities in excess of any
cash flows generated by the interest and the transferee hereby represents that
it intends to pay taxes associated with holding the residual interest as they
become due.
11. The
transferee has provided financial statements or other financial information
requested by the Transferor in connection with the transfer of the Trust
Certificates to permit the Transferor to assess the financial capability of
the
transferee to pay such taxes.
*
* *
IN
WITNESS WHEREOF, the transferee has caused this instrument to be executed on
its
behalf, pursuant to authority of its Board of Directors, by its duly authorized
officer and its corporate seal to be hereunto affixed, duly attested, this
__th
day of _______, 20__.
|
[NAME
OF TRANSFEREE]
|
|||||||
|
By:
|
|||||||
|
Name:
|
|||||||
|
Title:
|
|||||||
[Corporate
Seal]
ATTEST:
_________________________
[Assistant]
Secretary
Personally
appeared before me the above-named _____________, known or proved to me to
be
the same person who executed the foregoing instrument and to be the
_____________________ of the transferee, and acknowledged that he executed
the
same as his free act and deed and the free act and deed of the
transferee.
Subscribed
and sworn before me this __th day of _______, 20__.
|
NOTARY
PUBLIC
|
|
|
My
Commission expires the ___ day of ,
20__.
|
EXHIBIT
1
Certain
Definitions
“Ownership
Interest”: As to any Certificate, any ownership interest in such Certificate,
including any interest in such Certificate as the Holder thereof and any other
interest therein, whether direct or indirect, legal or beneficial.
“Permitted
Transferee”: Any person other than (i) the United States, any State or
political subdivision thereof, or any agency or instrumentality of any of the
foregoing, (ii) a foreign government, International Organization or any
agency or instrumentality of either of the foregoing, (iii) an organization
(except certain farmers’ cooperatives described in section 521 of the Code) that
is exempt from tax imposed by Chapter 1 of the Code (including the tax imposed
by section 511 of the Code on unrelated business taxable income) on any excess
inclusions (as defined in section 860E(c)(1) of the Code) with respect to any
Trust Certificate, (iv) rural electric and telephone cooperatives described
in section 1381(a)(2)(C) of the Code, (v) an “electing large partnership”
as defined in Section 775 of the Code, (vi) a Person that is not a
citizen or resident of the United States, a corporation, partnership, or other
entity (treated as a corporation or a partnership for federal income tax
purposes) created or organized in or under the laws of the United States, any
state thereof or the District of Columbia, or an estate whose income from
sources without the United States is includible in gross income for United
States federal income tax purposes regardless of its connection with the conduct
of a trade or business within the United States, or a trust if a court within
the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have authority
to control all substantial decisions of the trustor unless such Person has
furnished the transferor and the Trustee with a duly completed Internal Revenue
Service Form W-8ECI, and (vii) any other Person so designated by the
Trustee based upon an Opinion of Counsel that the Transfer of an Ownership
Interest in a Trust Certificate to such Person may cause the Trust Fund to
fail
to qualify as a REMIC at any time that any Notes are Outstanding. The terms
“United States,” “State” and “International Organization” shall have the
meanings set forth in section 7701 of the Code or successor provisions. A
corporation will not be treated as an instrumentality of the United States
or of
any State or political subdivision thereof for these purposes if all of its
activities are subject to tax and a majority of its board of directors is not
selected by such government unit.
“Person”:
Any individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated organization
or
government, or any agency or political subdivision thereof.
“Transfer”:
Any direct or indirect transfer or sale of any Ownership Interest in a
Certificate.
Section
3.05
of
the Agreement
(a) Each
Person who has or who acquires any Ownership Interest in a Trust Certificate
shall be deemed by the acceptance or acquisition of such Ownership Interest
to
have agreed to be bound by the following provisions, and the rights of each
Person acquiring any Ownership Interest in a Trust Certificate are expressly
subject to the following provisions:
a. Each
Person holding or acquiring any Ownership Interest in a Trust Certificate shall
be a Permitted Transferee and shall promptly notify the Trustee of any change
or
impending change in its status as a Permitted Transferee.
b. No
Ownership Interest in a Trust Certificate may be registered on the Closing
Date
or thereafter transferred, and the Trustee shall not register the Transfer
of
any Trust Certificate unless, in addition to the representation letters required
to be delivered to the Trustee under the seventh paragraph of this Section
3.05
above, the Trustee shall have been furnished with an affidavit (a “Transfer
Affidavit”) of the initial owner or the proposed transferee in the form attached
hereto as Exhibit I.
c. Each
Person holding or acquiring any Ownership Interest in a Trust Certificate shall
agree (A) to obtain a Transfer Affidavit from any other Person to whom such
Person attempts to Transfer its Ownership Interest in a Trust Certificate,
(B)
to obtain a Transfer Affidavit from any Person for whom such Person is acting
as
nominee, trustee or agent in connection with any Transfer of a Trust Certificate
and (C) not to Transfer its Ownership Interest in a Trust Certificate or to
cause the Transfer of an Ownership Interest in a Trust Certificate to any other
Person if it has actual knowledge that such Person is not a Permitted
Transferee.
d. Any
attempted or purported Transfer of any Ownership Interest in a Trust Certificate
in violation of the provisions of this Section 3.05 shall be absolutely null
and
void and shall vest no rights in the purported Transferee. If any purported
transferee shall become a Holder of a Trust Certificate in violation of the
provisions of this Section 5.02(c), then the last preceding Permitted Transferee
shall be restored to all rights as Holder thereof retroactive to the date of
registration of Transfer of such Trust Certificate. The Trustee shall be under
no liability to any Person for any registration of Transfer of a Trust
Certificate that is in fact not permitted by Section 3.05 and this Section
3.05
or for making any payments due on such Certificate to the Holder thereof or
taking any other action with respect to such Holder under the provisions of
this
Agreement so long as the Transfer was registered after receipt of the related
Transfer Affidavit, Transferor Certificate and either the Rule 144A Letter
or
the Investment Letter. The Trustee shall be entitled but not obligated to
recover from any Holder of a Trust Certificate that was in fact not a Permitted
Transferee at the time it became a Holder or, at such subsequent time as it
became other than a Permitted Transferee, all payments made on such Trust
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.
e. The
Depositor shall use its best efforts to make available, upon receipt of written
request from the Trustee, all information necessary to compute any tax imposed
under Section 860E(e) of the Code as a result of a Transfer of an Ownership
Interest in a Trust Certificate to any Holder who is not a Permitted
Transferee.
The
restrictions on Transfers of a Trust Certificate set forth in this Section
3.05
shall cease to apply (and the applicable portions of the legend on a Trust
Certificate may be deleted) with respect to Transfers occurring after delivery
to the Trustee of an Opinion of Counsel, which Opinion of Counsel shall not
be
an expense of the Trust Fund, the Trustee, the Sellers or the Master Servicer,
to the effect that the elimination of such restrictions will not cause any
REMIC
hereunder to fail to qualify as a REMIC at any time that the Certificates are
outstanding or result in the imposition of any tax on the Trust, a
Certificateholder or another Person. Each Person holding or acquiring any
Ownership Interest in a Trust Certificate hereby consents to any amendment
of
this Agreement that, based on an Opinion of Counsel furnished to the Trustee,
is
reasonably necessary (a) to ensure that the record ownership of, or any
beneficial interest in, a Trust Certificate is not transferred, directly or
indirectly, to a Person that is not a Permitted Transferee and (b) to provide
for a means to compel the Transfer of a Trust Certificate that is held by a
Person that is not a Permitted Transferee to a Holder that is a Permitted
Transferee.
Exhibit
I Rider
EXHIBIT
I
FORM
OF
TRANSFEROR CERTIFICATE FOR
TRUST
CERTIFICATES
Date:
CWALT,
Inc.,
as
Depositor
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The
Bank
of New York,
as
Indenture Trustee
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
|
Re:
|
GSC
Capital Corp. Mortgage Trust Alternative Loan Trust Notes, Series 2006-2
|
Ladies
and Gentlemen:
In
connection with our disposition of the Trust
Certificates, we certify that we have no knowledge the Transferee is not a
Permitted Transferee. All capitalized terms used herein but not defined herein
shall have the meanings assigned to them in the Indenture, dated as of
June
23,
2006,
between
CWALT, Inc., as Depositor, and The Bank of New York, as Indenture
Trustee.
|
Very
truly yours,
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
EXHIBIT
J
FORM
OF
TRANSFEREE CERTIFICATE
Wilmington
Trust Company
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
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The
Bank
of New York
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Re:
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Proposed
Transfer of Trust Certificate, GSC Capital Corp. Mortgage Trust 2006-2
(the “Certificate”)
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Ladies
and Gentlemen:
This
certification is being made by ______________ (the “Transferee”) in connection
with the proposed Transfer by ___________ of a Certificate representing __%
fractional undivided interest in GSC Capital Corp. Mortgage Trust 2006-2 created
pursuant to a Trust Agreement, dated as of June 20, 2006 (such agreement, as
amended by the Amended and Restated Trust, Agreement dated June 23, 2006, being
referred to herein as the “Trust Agreement”) among CWALT, Inc., as depositor,
Wilmington Trust Company, as owner trustee (the “Owner Trustee”), and The Bank
of New York, as certificate registrar and certificate paying agent. Initially
capitalized terms used but not defined herein have the meanings assigned to
them
in the Trust Agreement. The Transferee hereby certifies, represents and warrants
to, and covenants with, the Owner Trustee, the Indenture Trustee and the
Certificate Registrar that:
(a) The
Transferee is a real estate investment trust (“REIT”) within the meaning of
Section 856(a) of the Code, or a qualified REIT subsidiary (“QRS”) with the
meaning of Section 856(i) of the Code, or an entity disregarded as an entity
separate from a REIT or a QRS.
(b) Following
the Transfer, 100% of the Senior Notes, Privately Offered Notes and Certificates
(other than any Senior Notes or Privately Offered Notes with respect to which
a
“will be debt” opinion has been rendered by nationally recognized tax counsel
and furnished to the Certificate Registrar) will be owned by a single REIT,
directly or indirectly through one or more QRSs of such REIT or one or more
entities disregarded as entities separate from such REIT or such
QRSs.
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Date:
__________________________
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__________________________
Name
of Transferee
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__________________________
Signature
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__________________________
Name
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__________________________
Title
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EXHIBIT
K
FORM
OF
TRANSFEROR CERTIFICATE
Wilmington
Trust Company, as Owner Trustee
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The
Bank
of New York, as Indenture Trustee
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Re:
|
Proposed
Transfer of Trust Certificate, GSC Capital Corp. Mortgage Trust 2006-2
(the “Certificate”)
|
Ladies
and Gentlemen:
This
certification is being made by ___________ (the “Transferor”) in connection with
the proposed pledge or transfer to __________ of a Certificate representing
__%
fractional undivided interest in GSC Capital Corp. Mortgage Trust 2006-2 created
pursuant to a Trust Agreement, dated as of June 20, 2006 (such agreement, as
amended by the Amended and Restated Trust Agreement, dated June 23, 2006, being
referred to herein as the “Trust Agreement”) among CWALT, Inc., as depositor,
Wilmington Trust Company, as owner trustee (the “Owner Trustee”), and The Bank
of New York, as certificate registrar and certificate paying agent. Initially
capitalized terms used but not defined herein have the meanings assigned to
them
in the Trust Agreement. The Transferor hereby certifies, represents and warrants
to, and covenants with, the Owner Trustee, the Indenture Trustee and the
Certificate Registrar that:
The
Certificate is being transferred by the related lender under a loan agreement
or
repurchase agreement upon a default under any such indebtedness as permitted
under the Trust Agreement.
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Date:
__________________________
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__________________________
Name
of Transferor
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__________________________
Signature
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__________________________
Name
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__________________________
Title
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EXHIBIT
L
FORM
OF
INDENTURE
(TO
BE
PROVIDED BY AMENDMENT)
EXHIBIT
M
FORM
OF
POOLING AND SERVICING AGREEMENT
(TO
BE
PROVIDED BY AMENDMENT)
EXHIBIT
N
FORM
OF
DEFAULT AND REMIC CONVERSION NOTICE
Wilmington
Trust Company, as Owner Trustee
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▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The
Bank
of New York, as Indenture Trustee and Certificate Registrar
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▇▇▇
▇▇▇▇,
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Re:
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Notification
of Default Under Repurchase Agreement and REMIC
Conversion
Request, GSC Capital Corp. Mortgage Trust
2006-2
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Ladies
and Gentlemen:
This
notification is being delivered to the Indenture Trustee pursuant to Section
3.05 of the Trust Agreement by ___________ (the “Secured Party”) in connection
with the foreclosure upon the Equity Securities which were pledged to secure
indebtedness pursuant to a repurchase agreement. Capitalized terms used but
not
defined herein have the meanings assigned to them in the Indenture, dated as
of
June 23, 2006, between the Bank of New York, as indenture trustee, and GSC
Capital Corp. Mortgage Trust 2006-2, as issuing entity. A default under such
repurchase agreement has occurred and the Secured Party has foreclosed upon
such
Equity Securities.
Accordingly,
the Secured Party hereby directs the Indenture Trustee to execute and deliver
a
Direction Letter in the form of Exhibit [__] to the Sale and Servicing Agreement
in order to commence the process to complete a REMIC Conversion.
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Date:
__________________________
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__________________________
Name
of Secured Party
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__________________________
Signature
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__________________________
Name
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__________________________
Title
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