Exhibit 99.2
MORTGAGE LOAN PURCHASE AGREEMENT
Pursuant to this Mortgage Loan Purchase Agreement dated as of
December 1, 2006 (the "Agreement"), between Wachovia Bank, National Association
(together with its successors and permitted assigns hereunder, the "Seller") and
CWCapital Commercial Funding Corp. (together with its successors and permitted
assigns hereunder, the "Purchaser"), the Seller intends to sell and the
Purchaser intends to purchase certain multifamily and commercial mortgage loans
(collectively, the "Mortgage Loans"), as identified on the schedule annexed
hereto as Exhibit A (the "Mortgage Loan Schedule").
The Purchaser intends to deposit the Mortgage Loans, together with
other assets, into a trust fund (the "Trust Fund"), the beneficial ownership of
which will be evidenced by multiple classes (each, a "Class") of mortgage
pass-through certificates (the "Certificates") to be identified as the CWCapital
Commercial Funding Corp., Commercial Mortgage Trust 2006-C1, Commercial Mortgage
Pass-Through Certificates, Series 2006-C1. One or more "real estate mortgage
investment conduit" ("REMIC") elections will be made with respect to the Trust
Fund. The Certificates will be issued pursuant to a Pooling and Servicing
Agreement (the "Pooling and Servicing Agreement"), to be dated as of December 1,
2006, among the Purchaser, as depositor, Wachovia Bank, National Association, as
master servicer (the "Master Servicer"), CWCapital Asset Management LLC, as
special servicer (the "Special Servicer"), and ▇▇▇▇▇ Fargo Bank, N.A., as
trustee (the "Trustee"). Capitalized terms used but not defined herein have the
respective meanings set forth in the Pooling and Servicing Agreement, as in
effect on the Closing Date.
The Purchaser has entered into an Underwriting Agreement (the
"Underwriting Agreement"), dated as of December 6, 2006, with Wachovia Capital
Markets, LLC ("Wachovia"), Citigroup Global Markets Inc. ("Citi") and Deutsche
Bank Securities Inc. ("Deutsche" and, together with Wachovia and City, in such
capacity, the "Underwriters"), whereby the Purchaser will sell to the
Underwriters all of the Certificates that are to be registered under the
Securities Act of 1933, as amended (the "Securities Act"). The Purchaser has
also entered into a Certificate Purchase Agreement (the "Certificate Purchase
Agreement"), dated as of December 6, 2006, with Wachovia Capital Markets, LLC
("Wachovia"), Citigroup Global Markets Inc. ("Citi") and Deutsche Bank
Securities Inc. ("Deutsche" and, together with Wachovia and Citi, in such
capacity, the "Initial Purchasers"), whereby the Purchaser will sell to the
Initial Purchasers all of the remaining Certificates (other than the Residual
Interest Certificates).
In connection with the transactions contemplated hereby, the Seller,
the Purchaser, the Underwriters and the Initial Purchasers have entered into an
Indemnification Agreement (the "Indemnification Agreement"), dated as of the
date hereof.
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase. The Seller agrees to sell, and the
Purchaser agrees to purchase, the Mortgage Loans identified on the Mortgage Loan
Schedule. The Mortgage Loan Schedule may be amended to reflect the actual
Mortgage Loans accepted by the Purchaser pursuant to the terms hereof. The
Mortgage Loans will have an aggregate principal balance of $696,604,492 (the
"Wachovia Mortgage Loan Balance") as of the close of business on, with respect
to each Mortgage Loan, its Due Date in December 2006 (each such date, the
applicable "Cut-off Date"), after giving effect to any and all payments of
principal due thereon on or before such date, whether or not received. The
purchase and sale of the Mortgage Loans shall take place on December 21, 2006,
or such other date as shall be mutually acceptable to the parties hereto (the
"Closing Date"). The consideration (the "Aggregate Purchase Price") for the
Mortgage Loans shall consist of (i) a cash amount equal to 104.16658% of the
Wachovia Mortgage Loan Balance, plus (ii) $2,340,892, which amount represents
the amount of interest accrued on the Wachovia Mortgage Loan Balance at the
related Net Mortgage Rate for the period from and including the Cut-off Date up
to but not including the Closing Date but does not include any deduction for any
fees and/or expenses incurred in connection with this transaction. The Aggregate
Purchase Price shall be paid to the Seller or its designee by wire transfer in
immediately available funds (or by such other method as shall be mutually
acceptable to the parties hereto) on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of the
purchase price referred to in Section 1 hereof and satisfaction or waiver of the
conditions to closing set forth in Section 5 hereof, the Seller does hereby
sell, transfer, assign, set over and otherwise convey to the Purchaser, without
recourse, all the right, title and interest of the Seller in and to the Mortgage
Loans identified on the Mortgage Loan Schedule as of such date, subject to the
rights of the holders of any related Companion Loans as specified in the related
Co-Lender Agreement, as applicable, and the Purchaser hereby assumes such
Mortgage Loans, together with the rights and obligations related to such
Mortgage Loans as specified in the related Co-Lender Agreement. The Mortgage
Loan Schedule, as it may be amended, shall conform to the requirements set forth
in this Agreement and the Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall, subject to the rights of
the holders of any related Companion Loans, as applicable, be entitled to
receive all scheduled payments of principal and interest due after the Cut-off
Date, and all other recoveries of principal and interest collected after the
Cut-off Date (other than in respect of principal and interest on the Mortgage
Loans due on or before the Cut-off Date). All scheduled payments of principal
and interest due on or before the Cut-off Date for each Mortgage Loan, but
collected after such date, shall, subject to the rights of the holders of any
related Companion Loans, as applicable, belong to, and be promptly remitted to,
the Seller.
(c) On or before the Closing Date, the Seller shall, on behalf of
the initial Purchaser, deliver to and deposit, or cause to be delivered and
deposited, with the Trustee a Mortgage File for each Mortgage Loan in accordance
with the terms of, and conforming to the requirements set forth in, the Pooling
and Servicing Agreement; provided that, with respect to any Non-Serviced Trust
Loan, the preceding delivery requirements will be satisfied by delivery of the
original Mortgage Note (and all intervening endorsements) related to such
Non-Serviced Trust Loan and a copy of the "mortgage file" delivered under the
applicable Lead PSA. If the Seller cannot deliver or cause to be delivered the
documents and/or instruments referred to in clauses (a)(ii), (a)(iii), (a)(vi)
(if recorded) and (a)(viii) of the definition of "Mortgage File" solely because
of delay caused by the public recording office where such document or instrument
has been delivered for recordation, the Seller shall deliver to the Trustee a
copy of the original, certified by the Seller to be a true and complete copy of
the original thereof submitted for recording. Concurrently with such delivery,
the Seller shall deliver, or cause to be delivered, to the Master Servicer and
the Special Servicer copies of the Mortgage Note, Mortgage(s) and any reserve
and cash management agreements with respect to each Mortgage Loan for which a
Mortgage File is required to be delivered to the Trustee.
(d) For each Mortgage Loan for which a Mortgage File is required to
be delivered to the Trustee, the Seller shall bear the reasonable out-of-pocket
costs and expenses related to recording or filing, as the case may be, in the
appropriate public office for real property records or Uniform Commercial Code
financing statements, as appropriate, each related assignment of Mortgage and
assignment of Assignment of Leases, in favor of the Trustee referred to in
clause (a)(iv) of the definition of "Mortgage File" and each related UCC-2 and
UCC-3 assignment referred to in clause (a)(viii) of the definition of "Mortgage
File." If any such document or instrument is lost or returned unrecorded or
unfiled, as the case may be, because of a defect therein, then the Seller shall
prepare a substitute therefor or cure such defect or cause such to be done, as
the case may be, and the Seller shall deliver such substitute or corrected
document or instrument to the Trustee (or, if the Mortgage Loan is then no
longer subject to the Pooling and Servicing Agreement, to the then holder of
such Mortgage Loan).
(e) The Seller shall deliver, or cause to be delivered, to the
Master Servicer within 10 business days after the Closing Date, all documents
and records that (i) relate to the servicing and administration of the Serviced
Loans, (ii) are reasonably necessary for the ongoing administration and/or
servicing of the Serviced Loans and (iii) are in possession or control of the
Seller, together with (x) all unapplied Escrow Payments and Reserve Funds in the
possession or under control of the Seller that relate to the Serviced Loans and
(y) a statement indicating which Escrow Payments and Reserve Funds are allocable
to such Serviced Loans), provided that the Seller shall not be required to
deliver any draft documents, privileged or other internal communications, credit
underwriting, due diligence analyses or data or internal worksheets, memoranda,
communications or evaluations.
(f) After the Seller's transfer of the Mortgage Loans to the
Purchaser, as provided herein, the Seller shall not take any action inconsistent
with the Purchaser's ownership of the Mortgage Loans. Except for actions that
are the express responsibility of another party hereunder or under the Pooling
and Servicing Agreement, and further except for actions that the Seller is
expressly permitted to complete subsequent to the Closing Date, the Seller
shall, on or before the Closing Date, take all actions required under applicable
law to effectuate the transfer of the Mortgage Loans by the Seller to the
Purchaser.
(g) The Seller shall provide, or cause to be provided, information
necessary for the Master Servicer to produce the initial data with respect to
each Mortgage Loan for the CMSA Financial File and the CMSA Loan Periodic Update
File that are required to be prepared by the Master Servicer pursuant to the
Pooling and Servicing Agreement.
(h) The Seller shall provide the Master Servicer with the
Supplemental Servicer Schedule.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
(i) The Seller is a national banking association duly organized and
validly existing under the laws of the United States of America, is duly
qualified as a foreign organization in good standing in all jurisdictions
to the extent such qualification is necessary to hold and sell the
Mortgage Loans or otherwise comply with its obligations under this
Agreement, except where the failure to be so qualified would not have a
material adverse effect on its ability to perform its obligations
hereunder, and possesses all requisite authority and power to carry on its
business as currently conducted by it and to execute, deliver and comply
with its obligations under the terms of this Agreement.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Seller and, assuming due authorization, execution and
delivery hereof by the Purchaser, constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforcement may be limited by (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or other
similar laws affecting the enforcement of creditors' rights in general,
and (B) general equity principles (regardless of whether such enforcement
is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller and
the Seller's performance and compliance with the terms of this Agreement
will not (A) violate the Seller's organizational documents, (B) violate
any law or regulation or any administrative decree or order to which the
Seller is subject or (C) constitute a default (or an event which, with
notice or lapse of time, or both, would constitute a default) under, or
result in the breach of, any material contract, agreement or other
instrument to which the Seller is a party or by which the Seller is bound.
(iv) The Seller 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 other governmental agency or body, which default might
have consequences that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the condition (financial or
other) or operations of the Seller or its properties or have consequences
that would, in the Seller's reasonable and good faith judgment, materially
and adversely affect its performance hereunder.
(v) The Seller is not a party to or bound by any agreement or
instrument or subject to any organizational document or any other
corporate restriction or any judgment, order, writ, injunction, decree,
law or regulation that would, in the Seller's reasonable and good faith
judgment, materially and adversely affect the ability of the Seller to
perform its obligations under this Agreement or that requires the consent
of any third person to the execution and delivery of this Agreement by the
Seller or the performance by the Seller of its obligations under this
Agreement.
(vi) Except for the recordation and/or filing of assignments and
other transfer documents with respect to the Mortgage Loans, as
contemplated by Section 2(d), no consent, approval, authorization or order
of, registration or filing with, or notice to, any court or governmental
agency or body, is required for the execution, delivery and performance by
the Seller of or compliance by the Seller with this Agreement or the
consummation of the transactions contemplated by this Agreement; and no
bulk sale law applies to such transactions.
(vii) No litigation is pending or, to the best of the Seller's
knowledge, threatened against the Seller that would, in the Seller's good
faith and reasonable judgment, prohibit its entering into this Agreement
or materially and adversely affect the performance by the Seller of its
obligations under this Agreement.
(viii) The Seller intends to treat the transfer of the Mortgage
Loans to the Purchaser as a sale for accounting and tax purposes. In
connection with the foregoing, the Seller shall cause all of its records
to reflect such transfer as a sale (as opposed to a secured loan). The
consideration received by the Seller upon the sale of the Mortgage Loans
to the Purchaser will constitute at least reasonably equivalent value and
fair consideration for the Mortgage Loans. The Seller will be solvent at
all relevant times prior to, and will not be rendered insolvent by, the
sale of the Mortgage Loans to the Purchaser. The Seller is not selling the
Mortgage Loans to the Purchaser with any intent to hinder, delay or
defraud any of the creditors of the Seller. After giving effect to its
transfer of the Mortgage Loans to the Purchaser, as provided herein, the
value of the Seller's assets, either taken at their present fair saleable
value or at fair valuation, will exceed the amount of the Seller's debts
and obligations, including contingent and unliquidated debts and
obligations of the Seller, and the Seller will not be left with
unreasonably small assets or capital with which to engage in and conduct
its business. The Mortgage Loans do not constitute all or substantially
all of the assets of the Seller. The Seller does not intend to, and does
not believe that it will, incur debts or obligations beyond its ability to
pay such debts and obligations as they mature.
(ix) No proceedings looking toward liquidation, dissolution or
bankruptcy of the Seller are pending or contemplated.
(b) The Seller hereby makes, for the benefit of the Purchaser, with
respect to each Mortgage Loan, as of the Closing Date or as of such other date
expressly set forth therein, each of the representations and warranties set
forth on Exhibit B attached hereto, except as otherwise set forth on Exhibit C
attached hereto.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce the Seller to enter into this Agreement, the Purchaser hereby
represents and warrants for the benefit of the Seller as of the date hereof
that:
(i) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware. The
Purchaser has the full corporate power and authority and legal right to
acquire the Mortgage Loans from the Seller and to transfer the Mortgage
Loans to the Trustee.
(ii) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser and, assuming due authorization, execution
and delivery hereof by the Seller, constitutes a legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforcement may be limited by
(A) bankruptcy, insolvency, reorganization, receivership, moratorium or
other similar laws affecting the enforcement of creditors' rights in
general, and (B) general equity principles (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Purchaser
and the Purchaser's performance and compliance with the terms of this
Agreement will not (A) violate the Purchaser's organizational documents,
(B) violate any law or regulation or any administrative decree or order to
which the Purchaser is subject or (C) constitute a default (or an event
which, with notice or lapse of time, or both, would constitute a default)
under, or result in the breach of, any material contract, agreement or
other instrument to which the Purchaser is a party or by which the
Purchaser is bound.
(iv) Except as may be required under federal or state securities
laws (and which will be obtained on a timely basis), no consent, approval,
authorization or order of, registration or filing with, or notice to, any
governmental authority or court, is required for the execution, delivery
and performance by the Purchaser of or compliance by the Purchaser with
this Agreement, or the consummation by the Purchaser of any transaction
described in this Agreement.
(v) Under GAAP and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the
Purchaser, as provided herein, as a sale of the Mortgage Loans to the
Purchaser in exchange for the consideration specified in Section 1 hereof.
(vi) None of the acquisition of the Mortgage Loans by the Purchaser,
the transfer of the Mortgage Loans to the Trustee, or the execution,
delivery or performance of this Agreement by the Purchaser, results or
will result in the creation or imposition of any lien on any of the
Purchaser's assets or property, or conflicts or will conflict with,
results or will result in a breach of, or requires or will require the
consent of any third person or constitutes or will constitute a default
under (A) any term or provision of the Purchaser's certificate of
incorporation or bylaws, (B) any term or provision of any material
agreement, contract, instrument or indenture, to which the Purchaser is a
party or by which the Purchaser is bound, or (C) any law, rule,
regulation, order, judgment, writ, injunction or decree or any court or
governmental authority having jurisdiction over the Purchaser or its
assets.
SECTION 5. Notice of Breach; Cure; Repurchase; Covenant of the
Seller.
(a) If the Seller discovers or receives notice in accordance with
Section 10 hereof of a Document Defect or a breach of any of its representations
and warranties made pursuant to Section 3(b) hereof (each such breach, a
"Breach") relating to any Mortgage Loan, and such Document Defect or Breach
materially and adversely affects the value of the Mortgage Loan or the related
Mortgaged Property or the interests of the Purchaser in such Mortgage Loan (in
which case any such Document Defect or Breach would be a "Material Document
Defect" or a "Material Breach," as the case may be), then (subject to Section
5(b)) the Seller shall, within 90 days after its discovery or receipt of such
notice of such Material Document Defect or Material Breach (or, in the case of a
Material Document Defect or Material Breach that affects whether a Mortgage Loan
was, as of the Closing Date, is or will continue to be a "qualified mortgage"
within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later
than 90 days after any party discovering such Material Document Defect or
Material Breach) (such 90-day period, in either case, the "Initial Resolution
Period"), (i) cure such Material Document Defect or Material Breach, as the case
may be, in all material respects, which cure shall include payment of any
Additional Trust Fund Expenses associated therewith, or (ii) repurchase the
affected Mortgage Loan (or the related Mortgaged Property, or in the case of any
Mortgaged Property related to a Loan Group, to the extent of the Seller's
interest therein) from, and in accordance with the directions of, the Purchaser
or its designee, at a price equal to the Purchase Price; provided that if (A)
any such Material Breach or Material Document Defect, as the case may be, does
not affect whether the Mortgage Loan was, as of the Closing Date, is or will
continue to be a Qualified Mortgage, (B) such Material Breach or Material
Document Defect, as the case may be, is capable of being cured but not within
the applicable Initial Resolution Period, (C) the Seller has commenced and is
diligently proceeding with the cure of such Material Breach or Material Document
Defect, as the case may be, within the applicable Initial Resolution Period, and
(D) the Seller shall have delivered to the Purchaser a certification executed on
behalf of the Seller by an officer thereof confirming that such Material Breach
or Material Document Defect, as the case may be, is not capable of being cured
within the applicable Initial Resolution Period, setting forth what actions the
Seller is pursuing in connection with the cure thereof and stating that the
Seller anticipates that such Material Breach or Material Document Defect, as the
case may be, will be cured within an additional period not to exceed 90 days
beyond the end of the applicable Initial Resolution Period, then the Seller
shall have such additional 90-day period (the "Resolution Extension Period") to
complete such cure or, failing such, to repurchase the affected Mortgage Loan
(or the related Mortgaged Property) unless, solely in the case of a Material
Document Defect, (x) the Mortgage Loan is, at the end of the Initial Resolution
Period, then a Specially Serviced Mortgage Loan and a Servicing Tranfer Event
has occurred as a result of a monetary default or as described in clause (e),
clause (f) or clause (g) of the definition of "Specially Serviced Mortgage Loan"
in the Pooling and Servicing Agreement and (y) the Material Document Defect was
identified in a certification delivered to Seller by the Trustee pursuant to
Section 2.02 of the Pooling and Servicing Agreement not less than 90 days prior
to the delivery of the notice of such Material Document Defect; and provided,
further, that, if any such Material Document Defect is still not cured after the
initial 90-day period and any such additional 90-day period solely due to the
failure of the Seller to have received the recorded document, then the Seller
shall be entitled to continue to defer its cure and repurchase obligations in
respect of such Document Defect so long as the Seller certifies to the Purchaser
every 30 days thereafter that the Document Defect is still in effect solely
because of its failure to have received the recorded document and that the
Seller is diligently pursuing the cure of such defect (specifying the actions
being taken), except that no such deferral of cure or repurchase may continue
beyond the second anniversary of the Closing Date. Any such repurchase of a
Mortgage Loan shall be on a whole loan, servicing released basis. The Seller
shall have no obligation to monitor the Mortgage Loans regarding the existence
of a Breach or Document Defect, but if the Seller discovers a Material Breach or
Material Document Defect with respect to a Mortgage Loan, it will notify the
Purchaser. Provided that the Master Servicer has notice of such Material
Document Defect or Material Breach, the Master Servicer shall notify the Seller
if the related Mortgage Loan becomes a Specially Serviced Mortgage Loan during
any applicable cure periods. Any of the following document defects shall be
conclusively presumed to be a Material Document Defect: (a) the absence from the
Mortgage File of the original signed Mortgage Note, together with the
endorsements referred to in clause (a)(i) of the definition of "Mortgage File,"
unless the Mortgage File contains a signed lost note affidavit and indemnity
with respect to the missing Mortgage Note and any missing endorsement that
appears to be regular on its face, (b) other than with respect to a Non-Serviced
Trust Loan, the absence from the Mortgage File of the original executed Mortgage
or a copy of such Mortgage certified by the local authority with which the
Mortgage was recorded, in each case with evidence of recording thereon, that
appears to be regular on its face, unless there is included in the Mortgage File
a copy of the executed Mortgage and a certificate stating that the original
signed Mortgage was sent for recordation, (c) other than with respect to a
Non-Serviced Trust Loan, the absence from the Mortgage File of the original or a
copy of the lender's title insurance policy, together with all endorsements or
riders (or copies thereof) that were issued with or subsequent to the issuance
of such policy, or marked up insurance binder or title commitment which is
marked as a binding commitment and countersigned by title company, insuring the
priority of the Mortgage as a first lien on the Mortgaged Property, (d) other
than with respect to a Non-Serviced Trust Loan, the absence from the Mortgage
File of any intervening assignments required to create a complete chain of
assignment to the Trustee on behalf of the Trust and a certificate stating that
the original intervening assignments were sent for recordation, unless there is
included in the Mortgage File a certified copy of the intervening assignment,
(e) the absence from the Mortgage File of a copy of the ground lease with
respect to any leasehold mortgages or (f) other than with respect to a
Non-Serviced Trust Loan, the absence from the Servicing File of any original
letter of credit.
(b) If (x) any Mortgage Loan is subject to a Material Breach or
Material Document Defect and would otherwise be required to be repurchased as
contemplated by Section 5(a), (y) such Mortgage Loan is a Cross-Collateralized
Mortgage Loan or is secured by a portfolio of Mortgaged Properties, and (z) the
applicable Material Breach of Material Document Defect does not constitute a
Material Breach or Material Document Defect, as the case may be, as to any
related Cross-Collateralized Mortgage Loan or applies to only specific Mortgaged
Properties in such portfolio, the Purchaser or its designee shall use reasonable
efforts, subject to the terms of the related Mortgage Loans, to prepare and, to
the extent necessary and appropriate, have executed by the related Mortgagor and
record, such documentation as may be necessary to (i) in the case of a
Cross-Collateralized Group, terminate the cross-collateralization between the
Mortgage Loans in such Cross-Collateralized Group that are to be repurchased, on
the one hand, and the remaining Mortgage Loans therein, on the other hand, such
that those two groups of Mortgage Loans are each secured only by the Mortgaged
Properties identified in the Mortgage Loan Schedule as directly corresponding
thereto or (ii) in the case of Mortgage Loan secured by a portfolio of Mortgaged
Properties, release the affected Mortgaged Properties from the
cross-collateralization of the Mortgage Loan; provided that, if such
Cross-Collateralized Group is still subject to the Pooling and Servicing
Agreement, then no such termination shall be effected unless and until (i) the
Purchaser or its designee has received from the Seller (A) an Opinion of Counsel
to the effect that such termination or release will not cause an Adverse REMIC
Event to occur with respect to any REMIC Pool or an Adverse Grantor Trust Event
to occur with respect to the Grantor Trust and (B) a written confirmation from
each Rating Agency that such termination or release will not cause an Adverse
Rating Event to occur with respect to any Class of Certificates, (ii) the debt
service coverage ratio for the four preceding calendar quarters for all of the
Mortgage Loans relating to such Cross-Collateralized Group remaining is not less
than 0.05x below the debt service coverage ratio for all Mortgage Loans of such
Cross-Collateralized Group or Mortgaged Properties relating to such Mortgage
Loan secured by a portfolio of Mortgaged Properties (including the affected
Mortgage Loan) or Mortgage Loan (including the affected Mortgaged Property) set
forth in the Prospectus Supplement, (iii) the loan-to-value ratio for all of the
Mortgage Loans of such Cross-Collateralized Group remaining is not greater than
5% more than the loan-to-value ratio for all Mortgage Loans of such
Cross-Collateralized Group or Mortgaged Properties relating to such Mortgage
Loan secured by a portfolio of Mortgaged Properties (including the affected
Mortgage Loan) or Mortgage Loan (including the affected Mortgaged Property) set
forth in the Prospectus Supplement, and (iv) the Directing Holder (if one is
acting) has consented (which consent shall not be unreasonably withheld and
shall be deemed to have been given if no written objection is received by the
Seller within 10 Business Days of the Directing Holder's receipt of a written
request for such consent); and provided, further, that the Seller may, at its
option, purchase the entire Cross-Collateralized Group or Mortgage Loan in lieu
of terminating the cross-collateralization or a release of the affected
Mortgaged Properties from the cross-collateralization of the Mortgage Loan. In
the event that the cross-collateralization of any Cross-Collateralized Group is
terminated or any Mortgaged Property related to a Mortgage Loan secured by a
portfolio of Mortgaged Properties is released pursuant to this paragraph, the
Seller may elect either to repurchase only the affected Cross-Collateralized
Mortgage Loan or Mortgaged Properties as to which the Material Breach or
Material Document Defect exists or to repurchase the aggregate
Cross-Collateralized Mortgage Loans or Mortgaged Properties. All reasonable
costs and expenses incurred by the Purchaser or its designee pursuant to this
paragraph shall be included in the calculation of Purchase Price for the
Mortgage Loan(s) to be repurchased. If the cross-collateralization of any
Cross-Collateralized Group is not or cannot be terminated as contemplated by
this paragraph, then, for purposes of (i) determining whether any Breach or
Document Defect, as the case may be, is a Material Breach or Material Document
Defect, and (ii) the application of remedies, such Cross-Collateralized Group
shall be treated as a single Mortgage Loan.
It shall be a condition to any repurchase of a Mortgage Loan by the
Seller pursuant to Section 5(a) that (i) the Purchaser shall have executed and
delivered such instruments of endorsement, transfer or assignment then presented
to it by the Seller, in each case without recourse, as shall be necessary to
vest in the Seller the legal and beneficial ownership of such Mortgage Loan
(including any property acquired in respect thereof or proceeds of any insurance
policy with respect thereto), to the extent that such ownership interest was
transferred to the Purchaser hereunder; (ii) the Purchaser shall deliver to the
Seller all portions of the Mortgage File and other documents pertaining to such
Mortgage Loan; and (iii) the Purchaser shall release to the Seller any escrow
payments or reserve funds held by it, or on its behalf, in respect of such
Mortgage Loan. If any Mortgage Loan is to be repurchased as contemplated by
Section 5(a), the Seller shall amend the Mortgage Loan Schedule to reflect the
removal of such Mortgage Loan and shall forward such amended schedule to the
Purchaser.
(c) The Seller hereby acknowledges and agrees that any modification
of the Mortgage Loan pursuant to a workout, foreclosure, sale or other
liquidation pursuant to, and in accordance with, the Pooling and Servicing
Agreement shall not constitute a defense to any repurchase claim disputed by the
Seller nor shall such modification change the Purchase Price due from the Seller
for any repurchase claim. In the event of any such modification, the Seller
hereby agrees to repurchase the Mortgage Loan as modified, if the Seller is
required to or elects to repurchase such Mortgage Loan in accordance with the
terms of this Section 5. Any sale of the related Mortgage Loan, or foreclosure
upon such Mortgage Loan and sale of the successor REO Property, shall be without
(i) recourse of any kind (either expressed or implied) by such Person against
the Seller and (ii) representation or warranty of any kind (either expressed or
implied) by the Seller to or for the benefit of such Person.
(d) The fact that a Material Document Defect or Material Breach is
not discovered until after foreclosure (but in all instances prior to the sale
of the successor REO Property or Mortgage Loan) shall not prejudice any claim
against the Seller for repurchase of the REO Mortgage Loan or successor REO
Property, which claim shall be made in accordance with this Section 5. If a
court of competent jurisdiction issues a final order that the Seller is or was
obligated to repurchase the related Mortgage Loan or the successor REO Loan or
the Seller otherwise accepts liability, then, after the expiration of any
applicable appeal period, but in no event later than the termination of the
Trust pursuant to Section 9.01 of the Pooling and Servicing Agreement, the
Seller will be obligated to pay to the Trust the difference between (i) any
Liquidation Proceeds received upon such liquidation net of Liquidation Expenses
and (ii) the Purchase Price; provided that the prevailing party in such action
shall be entitled to recover from the other party all costs, fees and expenses
(including reasonable attorneys fees) related thereto.
(e) [Reserved].
(f) It is understood and agreed that the obligations of the Seller
set forth in Section 5(a) to cure any Material Breach or Material Document
Defect or to repurchase such Mortgage Loan constitute the sole remedies
available to the Purchaser with respect to any Breach or Document Defect.
(g) Notwithstanding the foregoing, if there exists a Breach of that
portion of the representation or warranty on the part of the Seller set forth
in, or made pursuant to, paragraph 38 of Exhibit B to this Agreement,
specifically relating to whether or not the Mortgage Loan documents or any
particular Mortgage Loan document for any Mortgage Loan requires the related
Mortgagor to bear reasonable costs and expenses associated with a defeasance, as
set forth in paragraph 38 (any such fees, costs or expenses, referred to herein
as "Covered Costs"), then the Purchaser or its designee will direct the Seller
in writing to wire transfer to the Custodial Account, within 90 days of receipt
of such direction, the amount of any such reasonable costs and expenses incurred
by the Trust that (i) otherwise would have been required to be paid by the
Mortgagor if such representation or warranty with respect to such costs and
expenses had in fact been true, as set forth in the related representation or
warranty, (ii) have not been paid by the Mortgagor, (iii) are the basis of such
Breach and (iv) constitute "Covered Costs." Upon payment of such costs, the
Seller shall be deemed to have cured such Breach in all respects. Provided that
such payment is made, this paragraph describes the sole remedy available to the
Purchaser regarding any such Breach, regardless of whether it constitutes a
Material Breach, and the Seller shall not be obligated to otherwise cure such
Breach or repurchase the affected Mortgage Loan under any circumstances.
(h) For so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, the Seller shall provide the Purchaser (or
with respect to any Serviced Companion Loan that is deposited into another
securitization, the depositor of such securitization) and the Trustee with any
Additional Form 10-D Disclosure and any Additional Form 10-K Disclosure set
forth next the Purchaser's name on Exhibit P and Exhibit Q of the Pooling and
Servicing Agreement within the time periods set forth in the Pooling and
Servicing Agreement.
SECTION 6. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇
LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ at 10:00 A.M., New York City
time, on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a) All of the representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this Agreement, and all
of the representations and warranties of the Purchaser set forth in Section 4 of
this Agreement, shall be true and correct in all material respects as of the
Closing Date;
(b) Insofar as it affects the obligations of the Seller hereunder,
the Pooling and Servicing Agreement shall be in a form mutually acceptable to
the Purchaser and the Seller;
(c) All documents specified in Section 7 of this Agreement (the
"Closing Documents"), in such forms as are reasonably acceptable to the
Purchaser, shall be duly executed and delivered by all signatories as required
pursuant to the respective terms thereof;
(d) The Seller shall have delivered and released to the Trustee (or
a Custodian on its behalf), the Master Servicer and the Special Servicer all
documents and funds required to be delivered to the Trustee, the Master Servicer
and the Special Servicer, respectively, pursuant to Section 2 of this Agreement;
(e) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been complied with in all
material respects, and the Seller shall have the ability to comply with all
terms and conditions and perform all duties and obligations required to be
complied with or performed after the Closing Date;
(f) The Seller shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement; and
(g) Neither the Underwriting Agreement nor the Certificate Purchase
Agreement shall have been terminated in accordance with its terms.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 7. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser and the Seller;
(b) The Pooling and Servicing Agreement duly executed by the parties
thereto;
(c) The Indemnification Agreement duly executed by the parties
thereto;
(d) A Certificate of the Seller, executed by a duly authorized
officer of the Seller and dated the Closing Date, and upon which the Purchaser,
the Underwriters and the Initial Purchasers may rely, to the effect that the
Seller has, in all material respects, complied with all the agreements and
satisfied all the conditions on its part that are required under this Agreement
to be performed or satisfied at or prior to the Closing Date;
(e) An Officer's Certificate from an officer of the Seller, dated
the Closing Date, and upon which the Purchaser, the Underwriters and the Initial
Purchasers may rely, to the effect that each individual who, as an officer or
representative of the Seller, signed this Agreement, the Indemnification
Agreement or any other document or certificate delivered on or before the
Closing Date in connection with the transactions contemplated herein or in the
Indemnification Agreement, was at the respective times of such signing and
delivery, and is as of the Closing Date, duly elected or appointed, qualified
and acting as such officer or representative, and the signatures of such persons
appearing on such documents or certificates are their genuine signatures, or
such other statement relating to incumbency that is acceptable to the Purchaser,
the Underwriters and the Initial Purchasers;
(f) As certified by an officer of the Seller, true and correct
copies of (i) the resolutions of the board of directors authorizing the Seller's
entering into the transactions contemplated by this Agreement and the
Indemnification Agreement, (ii) the organizational documents of the Seller, and
(iii) a certificate of good standing of the Seller issued by the Secretary of
State of the State of Delaware as of a recent date;
(g) A favorable opinion of counsel to the Seller, subject to
customary exceptions and carveouts, dated the Closing Date and addressed to the
Purchaser, the Underwriters, the Initial Purchasers, the Rating Agencies and,
upon request, the other parties to the Pooling and Servicing Agreement, together
with such other opinions of such counsel as may be required by the Rating
Agencies in connection with the transactions contemplated hereby;
(h) A favorable opinion of in-house counsel to the Seller, subject
to customary exceptions and carveouts, dated the Closing Date and addressed to
the Purchaser, the Underwriters, the Initial Purchasers, the Rating Agencies
and, upon request, the other parties to the Pooling and Servicing Agreement;
(i) A letter of counsel of the Seller, subject to customary
exceptions and carveouts, dated the Closing Date and addressed to the
Underwriters, to the effect that nothing has come to such counsel's attention
that would lead such counsel to believe that the Prospectus Supplement as of the
date thereof or as of the Closing Date contains, with respect to the Seller or
the Mortgage Loans, any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein relating to the
Seller or the Mortgage Loans, in the light of the circumstances under which they
were made, not misleading; and
(j) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 8. Costs. The reasonable out-of-pocket costs and expenses
incurred by the Seller, each other mortgage loan seller, the Purchaser, the
Underwriters and the Initial Purchasers in connection with the securitization of
the Mortgage Loans and the other transactions contemplated by this Agreement,
the Underwriting Agreement and the Certificate Purchase Agreement shall be
payable as set forth in a separate writing among such parties on the Closing
Date.
SECTION 9. Grant of a Security Interest. The parties hereto agree
that it is their express intent that the conveyance of the Mortgage Loans by the
Seller to the Purchaser as provided in Section 2 hereof be, and be construed as,
a sale of the Mortgage Loans by the Seller to the Purchaser and not as a pledge
of the Mortgage Loans by the Seller to the Purchaser to secure a debt or other
obligation of the Seller. However, if, notwithstanding the aforementioned intent
of the parties, the Mortgage Loans are held to be property of the Seller, then
it is the express intent of the parties that: (i) such conveyance shall be
deemed to be a pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt or other obligation of the Seller; (ii) this Agreement shall be
deemed to be a security agreement within the meaning of Articles 8 and 9 of the
applicable Uniform Commercial Code; (iii) the conveyance provided for in Section
2 hereof shall be deemed to be a grant by the Seller to the Purchaser of a
security interest in all of the Seller's right, title and interest in and to the
Mortgage Loans, and all amounts payable to the holder of the Mortgage Loans in
accordance with the terms thereof, and all proceeds of the conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities or other
property; (iv) the assignment to the Trustee of the interest of the Purchaser in
and to the Mortgage Loans shall be deemed to be an assignment of any security
interest created hereunder; (v) the possession by the Trustee or any of its
agents, including, without limitation, the Custodian, of the Mortgage Notes for
the Mortgage Loans, and such other items of property as constitute instruments,
money, negotiable documents or chattel paper shall be deemed to be "possession
by the secured party" for purposes of perfecting the security interest pursuant
to Section 9-313 of the applicable Uniform Commercial Code; and (vi)
notifications to persons (other than the Trustee) holding such property, and
acknowledgments, receipts or confirmations from such persons holding such
property, shall be deemed notifications to, or acknowledgments, receipts or
confirmations from, financial intermediaries, bailees or agents (as applicable)
of the secured party for the purpose of perfecting such security interest under
applicable law. The Seller and the Purchaser shall, to the extent consistent
with this Agreement, take such actions as may be necessary to ensure that, if
this Agreement were deemed to create a security interest in the Mortgage Loans,
such security interest would be deemed to be a perfected security interest of
first priority under applicable law and will be maintained as such throughout
the term of this Agreement and the Pooling and Servicing Agreement.
SECTION 10. Notices. All notices, copies, requests, consents,
demands and other communications required hereunder shall be in writing and
telecopied or delivered to the intended recipient at the "Address for Notices"
specified beneath its name on the signature pages hereof or, as to either party,
at such other address as shall be designated by such party in a notice hereunder
to the other party. Except as otherwise provided in this Agreement, all such
communications shall be deemed to have been duly given when transmitted by
telecopier or personally delivered or, in the case of a mailed notice, upon
receipt, in each case given or addressed as aforesaid.
SECTION 11. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, incorporated herein by reference or contained in the certificates of
officers of the Seller submitted pursuant hereto, shall remain operative and in
full force and effect and shall survive delivery of the Mortgage Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee) until the
termination of the Pooling and Servicing Agreement pursuant to the terms
thereof.
SECTION 12. Severability of Provisions. Any part, provision,
representation, warranty or covenant of this Agreement that is prohibited or
which is held to be void or unenforceable shall be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any part, provision, representation, warranty or covenant of
this Agreement that is prohibited or unenforceable or is held to be void or
unenforceable in any particular 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 particular jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction. To the extent permitted
by applicable law, the parties hereto waive any provision of law which prohibits
or renders void or unenforceable any provision hereof.
SECTION 13. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but which together
shall constitute one and the same agreement.
SECTION 14. GOVERNING LAW; CONSENT TO JURISDICTION. THIS AGREEMENT
WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, APPLICABLE TO AGREEMENTS NEGOTIATED, MADE AND TO BE PERFORMED ENTIRELY
IN SAID STATE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE SELLER
AND THE PURCHASER EACH HEREBY IRREVOCABLY (I) SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE AND FEDERAL COURTS SITTING IN NEW YORK CITY WITH RESPECT TO
MATTERS ARISING OUT OF OR RELATING TO THIS AGREEMENT; (II) AGREES THAT ALL
CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN
SUCH NEW YORK STATE OR FEDERAL COURTS; (III) WAIVES, TO THE FULLEST POSSIBLE
EXTENT, THE DEFENSE OF AN INCONVENIENT FORUM; AND (IV) AGREES THAT A FINAL
JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER
PROVIDED BY LAW.
SECTION 15. Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further actions as the
other party may, from time to time, reasonably request in order to effectuate
the purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller without the
prior written consent of the Purchaser, except that any person into which the
Seller may be merged or consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Seller is a party, or any
person succeeding to all or substantially all of the business of the Seller,
shall be the successor to the Seller hereunder. The Purchaser has the right to
assign its interest under this Agreement, in whole or in part, as may be
required to effect the purposes of the Pooling and Servicing Agreement, and the
assignee shall, to the extent of such assignment, succeed to the rights and
obligations hereunder of the Purchaser. Subject to the foregoing, this Agreement
shall bind and inure to the benefit of and be enforceable by the Seller, the
Purchaser, and their respective successors and permitted assigns.
SECTION 17. Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in writing and
signed by a duly authorized officer of the party against whom such waiver or
modification is sought to be enforced. The Seller's obligations hereunder shall
in no way be expanded, changed or otherwise affected by any amendment of or
modification to the Pooling and Servicing Agreement, unless the Seller has
consented to such amendment or modification in writing.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized officers as of the
date first above written.
SELLER
WACHOVIA BANK,
NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
PURCHASER
CWCAPITAL COMMERCIAL FUNDING
CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
SCHEDULE A
Notices
Seller:
Address for Notices:
Wachovia Bank, National Association
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: COBALT CMBS Commercial Mortgage Trust 2006-C1,
Commercial Mortgage Pass-Through Certificates, Series 2006-C1
Purchaser:
Address for Notices:
CWCapital Commercial Funding Corp.
One ▇▇▇▇▇▇▇ River Place
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
EXHIBIT A
Mortgage Loan Schedule
Mortgage Loan Number Property Name
-------------------- -----------------------------------
5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
6 Hollywood Roosevelt Hotel
7 ▇▇▇▇▇▇▇▇ Center
10 Addison Corporate Center
13 San Lagos at Arrowhead Highlands
16 Carefree Pebble
22 Valley View Portfolio
22.001 Carefree Valley View
22.002 Carefree Valley View - Full Service
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ Greenwich Atrium
27 The Crossings at Paso Robles II
30 Carefree Spring Valley
39 Four Points by Sheraton
40 The Exchange at Lubbock
43 Arbutus Shopping Plaza
50 ▇▇▇▇▇▇▇▇ Square
55 Riviera Senior Living
59 Market Center
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Shopping Center
68 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇ Corners
78 Spyglass Hill Apartments
81 Riverdale Crossing
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
94 University Plaza
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ at Carolina Forest
▇▇▇ ▇-▇▇▇▇ Self Storage
115 CVS - Mobile, AL
125 CVS - Baton Rouge, LA
133 Walgreens - Harvey, LA
▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇ ▇▇▇ - ▇▇▇▇▇▇▇▇, ▇▇
144 828 Fullerton
148 Magna ▇▇▇▇▇▇▇▇ Corporation
151 ▇▇▇ ▇▇▇ ▇▇▇▇
158 Dollar General - Crossville, TN
161 Dollar General - Ardmore, TN
166 Advance Auto - Columbia Heights, MN
167 Advance Auto - Fergus Falls, MN
Mortgage Loan Number Address City State Zip Code
-------------------- ------------------------------------------------------ ---------------- ----- --------
5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
6 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
7 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
10 ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
13 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
16 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
22 Various ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
22.001 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
22.002 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
23 ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
25 ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
27 2005 - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
30 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
39 ▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
40 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
43 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
50 ▇▇▇-▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
55 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
59 ▇▇▇▇-▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
61 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
64 ▇▇▇-▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
68 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇
70 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
74 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
78 ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ " ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
81 ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
86 ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
93 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
94 ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ and Carolina ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
111 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
115 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
125 ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
133 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
134 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
142 ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
144 ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
148 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
151 ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
158 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
161 ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
166 ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
167 ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
Mortgage Loan Number Cut-Off Date Loan Balance ($) Monthly P&I Payments ($) Mortgage Rate
-------------------- ----------------------------- ------------------------ -------------
5 85,400,000 543,724 6.57000%
6 69,929,646 417,438 5.95000%
7 65,000,000 393,561 6.09200%
10 53,110,720 316,380 5.94000%
13 40,000,000 IO 5.71000%
16 34,444,000 IO 6.35000%
22 27,594,000 IO 6.35000%
22.001
22.002
23 26,500,000 162,304 6.20000%
25 26,000,000 IO 5.45000%
27 25,000,000 IO 5.92000%
30 22,715,000 IO 6.35000%
39 16,725,000 102,435 6.20000%
40 16,510,000 IO 6.42000%
43 16,000,000 IO 5.85000%
50 14,500,000 IO 6.02000%
55 13,000,000 80,043 6.25000%
59 11,725,000 68,349 5.74000%
61 11,610,000 IO 6.02000%
64 10,979,887 65,951 6.00000%
68 10,000,000 59,442 5.92000%
70 9,960,000 IO 6.02000%
74 9,325,000 IO 6.02000%
78 8,500,000 IO 6.12000%
81 8,120,000 IO 6.02000%
86 7,767,500 IO 5.86000%
93 6,800,000 40,029 5.83000%
94 6,800,000 41,296 6.12000%
99 5,591,882 35,978 5.97000%
111 4,492,009 27,357 6.13000%
115 4,277,000 IO 5.23000%
125 3,933,000 IO 5.33000%
133 3,543,000 IO 5.33000%
134 3,467,000 IO 5.28000%
142 3,206,000 IO 5.28000%
144 3,125,000 19,099 6.18000%
148 2,744,972 16,488 6.00000%
151 2,694,878 18,015 5.73000%
158 1,950,000 IO 5.75000%
161 1,804,000 IO 5.79000%
166 1,038,000 IO 5.83000%
167 722,000 IO 5.83000%
Mortgage Loan Number Remaining Term to Maturity or ARD (Mos.) Maturity Date or ARD
-------------------- ---------------------------------------- --------------------
5 116 08/11/16
6 119 11/11/16
7 119 11/11/16
10 119 11/11/16
13 118 10/11/16
16 56 08/11/11
22 56 08/11/11
22.001
22.002
23 118 10/11/16
25 58 10/11/11
27 119 11/11/16
30 56 08/11/11
39 118 10/11/16
40 118 10/11/16
43 119 11/11/16
50 59 11/11/11
55 119 11/11/16
59 119 11/11/16
61 59 11/11/11
64 118 10/11/16
68 119 11/11/16
70 59 11/11/11
74 59 11/11/11
78 117 09/11/16
81 59 11/11/11
86 118 10/11/16
93 119 11/11/16
94 120 12/11/16
99 119 11/11/16
111 118 10/11/16
115 113 05/11/16
125 116 08/11/16
133 113 05/11/16
134 116 08/11/16
142 115 07/11/16
144 118 10/11/16
148 118 10/11/16
151 119 11/11/16
158 114 06/11/16
161 114 06/11/16
166 115 07/11/16
167 115 07/11/16
Mortgage Loan Number Remaining Amort Term (Mos.) for Balloon Mortgage Loan Interest Accrual Method
-------------------- ----------------------------------------------------- -----------------------
5 360 Actual/360
6 359 Actual/360
7 360 Actual/360
10 360 Actual/360
13 IO Actual/360
16 IO Actual/360
22 IO Actual/360
22.001
22.002
23 360 Actual/360
25 IO Actual/360
27 IO Actual/360
30 IO Actual/360
39 360 Actual/360
40 IO Actual/360
43 IO Actual/360
50 IO Actual/360
55 360 Actual/360
59 360 Actual/360
61 IO Actual/360
64 358 Actual/360
68 360 Actual/360
70 IO Actual/360
74 IO Actual/360
78 IO Actual/360
81 IO Actual/360
86 IO Actual/360
93 360 Actual/360
94 360 Actual/360
99 299 Actual/360
111 358 Actual/360
115 IO Actual/360
125 IO Actual/360
133 IO Actual/360
134 IO Actual/360
142 IO Actual/360
144 360 Actual/360
148 358 Actual/360
151 263 Actual/360
158 IO Actual/360
161 IO Actual/360
166 IO Actual/360
167 IO Actual/360
Mortgage Loan Number Loan Administrative Cost Rate Master Servicing Fee Rate Ground Lease Mortgage Loan Seller Originator
-------------------- ----------------------------- ------------------------- ------------ -------------------- ----------
5 0.02080% 0.02000% N Wachovia Wachovia
6 0.02080% 0.02000% N Wachovia Wachovia
7 0.02080% 0.02000% Y Wachovia Wachovia
10 0.02080% 0.02000% N Wachovia Wachovia
13 0.02080% 0.02000% N Wachovia Wachovia
16 0.02080% 0.02000% N Wachovia Wachovia
22 0.02080% 0.02000% N Wachovia Wachovia
22.001 N
22.002 N
23 0.02080% 0.02000% N Wachovia Wachovia
25 0.02080% 0.02000% N Wachovia Wachovia
27 0.02080% 0.02000% Y Wachovia Wachovia
30 0.02080% 0.02000% N Wachovia Wachovia
39 0.05080% 0.05000% N Wachovia Wachovia
40 0.02080% 0.02000% N Wachovia Wachovia
43 0.02080% 0.02000% N Wachovia Wachovia
50 0.02080% 0.02000% N Wachovia Wachovia
55 0.02080% 0.02000% N Wachovia Wachovia
59 0.02080% 0.02000% N Wachovia Wachovia
61 0.02080% 0.02000% N Wachovia Wachovia
64 0.02080% 0.02000% Y Wachovia Wachovia
68 0.02080% 0.02000% N Wachovia Wachovia
70 0.02080% 0.02000% N Wachovia Wachovia
74 0.02080% 0.02000% N Wachovia Wachovia
78 0.02080% 0.02000% N Wachovia Wachovia
81 0.02080% 0.02000% N Wachovia Wachovia
86 0.02080% 0.02000% N Wachovia Wachovia
93 0.02080% 0.02000% N Wachovia Wachovia
94 0.02080% 0.02000% N Wachovia Wachovia
99 0.02080% 0.02000% N Wachovia Wachovia
111 0.02080% 0.02000% N Wachovia Wachovia
115 0.02080% 0.02000% N Wachovia Wachovia
125 0.02080% 0.02000% N Wachovia Wachovia
133 0.02080% 0.02000% N Wachovia Wachovia
134 0.02080% 0.02000% N Wachovia Wachovia
142 0.02080% 0.02000% N Wachovia Wachovia
144 0.02080% 0.02000% N Wachovia Wachovia
148 0.02080% 0.02000% N Wachovia Wachovia
151 0.02080% 0.02000% N Wachovia Wachovia
158 0.02080% 0.02000% N Wachovia Wachovia
161 0.02080% 0.02000% N Wachovia Wachovia
166 0.02080% 0.02000% N Wachovia Wachovia
167 0.02080% 0.02000% N Wachovia Wachovia
Mortgage Loan Number Defeasance Loan Cross Collateralized and Cross Defaulted Loan Flag Letter of Credit In-Place ARD Loan
-------------------- --------------- -------------------------------------------------- ------------------------- --------
5 Y N N N
6 Y N N N
7 Y N N N
10 Y N N N
13 Y N N N
16 N N N N
22 N N N N
22.001
22.002
23 Y N N N
25 Y N N N
27 Y N N N
30 N N N N
39 N N N N
40 N N N Y
43 Y N N Y
50 Y N N N
55 N N N N
59 Y N N N
61 Y N N N
64 Y N N N
68 Y N N N
70 Y N N N
74 Y N N N
78 N N N N
81 Y N N N
86 N N N Y
93 Y N N N
94 Y N N N
99 Y N N N
111 N N N N
115 Y N N Y
125 Y N N Y
133 Y N N Y
134 Y N N Y
142 Y N N Y
144 Y N N N
148 Y N N N
151 Y N N N
158 Y N N Y
161 Y N N Y
166 Y N N Y
167 Y N N Y
Mortgage Loan Number Anticipated Repayment Date If ARD loan, Additional Interest Rate
-------------------- -------------------------- -------------------------------------------------------------
5
6
7
10
13
16
22
22.001
22.002
23
25
27
30
39
40 10/11/16 Greater of initial interest rate plus 3.0% or TCMYI plus 3.0%
43 11/11/16 Greater of initial interest rate plus 3.0% or TCMYI plus 3.0%
50
55
59
61
64
68
70
74
78
81
86 10/11/16 Greater of initial interest rate plus 3.0% or TCMYI plus 3.0%
93
94
99
111
115 05/11/16 Greater of initial interest rate plus 2.0% or TCMYI plus 2.0%
125 08/11/16 Greater of initial interest rate plus 2.0% or TCMYI plus 2.0%
133 05/11/16 Greater of initial interest rate plus 2.0% or TCMYI plus 2.0%
134 08/11/16 Greater of initial interest rate plus 2.0% or TCMYI plus 2.0%
142 07/11/16 Greater of initial interest rate plus 2.0% or TCMYI plus 2.0%
144
148
151
158 06/11/16 Greater of initial interest rate plus 2.0% or TCMYI plus 2.0%
161 06/11/16 Greater of initial interest rate plus 2.0% or TCMYI plus 2.0%
166 07/11/16 Greater of initial interest rate plus 2.0% or TCMYI plus 2.0%
167 07/11/16 Greater of initial interest rate plus 2.0% or TCMYI plus 2.0%
Mortgage Loan Number Serviced Loan Combination?
-------------------- --------------------------
5 N
6 N
7 N
10 N
13 N
16 N
22 N
22.001
22.002
▇▇ ▇
▇▇ ▇
▇▇ ▇
▇▇ ▇
39 N
40 N
43 N
50 N
55 N
59 N
61 N
64 N
68 N
70 N
74 N
78 N
81 N
86 N
93 N
94 N
99 N
111 N
▇▇▇ ▇
▇▇▇ ▇
133 N
▇▇▇ ▇
▇▇▇ ▇
144 N
▇▇▇ ▇
▇▇▇ ▇
▇▇▇ ▇
▇▇▇ ▇
166 N
167 N
EXHIBIT B
Mortgage Loan Representations and Warranties
1) Mortgage Loan Schedule. The information set forth in the Mortgage
Loan Schedule is complete, true and correct in all material respects as of
the date of this Agreement and as of the Cut-off Date.
2) Whole Loan; Ownership of Mortgage Loans. Each Mortgage Loan is a
whole loan and not a participation interest in a mortgage loan.
Immediately prior to the transfer to the Purchaser of the Mortgage Loans,
the Seller had good title to, and was the sole owner of, each Mortgage
Loan. The Seller has full right, power and authority to transfer and
assign each of the Mortgage Loans to or at the direction of the Purchaser
and has validly and effectively conveyed (or caused to be conveyed) to the
Purchaser or its designee all of the Seller's legal and beneficial
interest in and to the Mortgage Loans free and clear of any and all
pledges, liens, charges, security interests and/or other encumbrances. The
sale of the Mortgage Loans to the Purchaser or its designee does not
require the Seller to obtain any governmental or regulatory approval or
consent that has not been obtained.
3) Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Cut-off
Date, and no Mortgage Loan was 30 days or more delinquent in the
twelve-month period immediately preceding the Cut-off Date.
4) Lien; Valid Assignment. None of the matters referred to in
clauses (B), (C) or (D) of the definition of "Permitted Liens" (as defined
below), individually or in the aggregate, materially interferes with the
security intended to be provided by such Mortgage, the marketability or
current use of the Mortgaged Property, or the current ability of the
Mortgaged Property to generate operating income sufficient to service the
Mortgage Loan debt. The related assignment of such Mortgage executed and
delivered in favor of the Trustee is in recordable form and constitutes a
legal, valid and binding assignment, sufficient to convey to the assignee
named therein all of the assignor's right, title and interest in, to and
under such Mortgage. Such Mortgage, together with any separate security
agreements, chattel mortgages or equivalent instruments, establishes and
creates a valid and, subject to the exceptions set forth in paragraph 13
below, enforceable first lien security interest in favor of the holder
thereof in all of the related Mortgagor's personal property used in, and
reasonably necessary to operate, the related Mortgaged Property. In the
case of a Mortgaged Property operated as a hotel or an assisted living
facility, the Mortgagor's personal property includes all personal property
that a prudent mortgage lender making a similar Mortgage Loan would deem
reasonably necessary to operate the related Mortgaged Property as it is
currently being operated. A Uniform Commercial Code financing statement
has been filed and/or recorded in all places necessary to perfect a valid
security interest in personal property located on the Mortgaged Property
that is owned by the Mortgagor and either (i) is reasonably necessary to
operate the Mortgaged Property or (ii) is (as indicated in the appraisal
obtained in connection with the origination of the related Mortgage Loan)
material to the value of the Mortgaged Property, to the extent a security
interest may be so created therein, and such security interest is a first
priority security interest, subject to any prior purchase money security
interest or a sale and leaseback financing arrangement in such personal
property and any personal property leases applicable to such personal
property. Notwithstanding the foregoing, no representation is made as to
the perfection of any security interest in rents or other personal
property to the extent that possession or control of such items or actions
other than the filing of Uniform Commercial Code financing statements are
required in order to effect such perfection.
"Permitted Liens" shall mean, (A) the lien for current real estate taxes
and assessments not yet due and payable, (B) covenants, conditions and
restrictions, rights of way, easements and other matters that are of
public record and/or are referred to in the related mortgagee's title
insurance policy, (C) exceptions and exclusions specifically referred to
in such mortgagee's title insurance policy, (D) other matters to which
like properties are commonly subject and (E) the lien created through the
cross-collateralization of the Mortgage Loan with another Mortgage Loan.
5) Assignment of Leases and Rents. The Assignment of Leases related
to and delivered in connection with each Mortgage Loan establishes and
creates a valid, subsisting and, subject to the exceptions set forth in
paragraph 13 below, enforceable first priority lien and first priority
security interest in the related Mortgagor's interest in all leases,
sub-leases, licenses or other agreements pursuant to which any person is
entitled to occupy, use or possess all or any portion of the real property
subject to the related Mortgage, and each assignor thereunder has the full
right to assign the same. The related assignment of any Assignment of
Leases not included in a Mortgage has been executed and delivered in favor
of the Trustee and is in recordable form and constitutes a legal, valid
and binding assignment, sufficient to convey to the assignee named therein
all of the assignor's right, title and interest in, to and under such
Assignment of Leases.
6) Mortgage Status; Waivers and Modifications. No Mortgage has been
satisfied, cancelled, rescinded or subordinated in whole or in part, and
the related Mortgaged Property has not been released from the lien of such
Mortgage, in whole or in part (except for partial reconveyances of real
property that are set forth on Schedule B-1 to this Exhibit B), nor has
any instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release, in any manner that, in
each case, materially adversely affects the value of the related Mortgaged
Property. None of the terms of any Mortgage Note, Mortgage or Assignment
of Leases has been impaired, waived, altered or modified in any respect,
except by written instruments, all of which are included in the related
Mortgage File since the date upon which the due diligence file related to
the applicable Mortgage Loan was delivered to CWCapital Investments LLC,
or an affiliate.
7) Condition of Property; Condemnation. (i) With respect to the
Mortgaged Properties securing the Mortgage Loans that were the subject of
an engineering report within 18 months prior to the Cut-off Date as set
forth on Schedule B-1 to this Exhibit B, each Mortgaged Property is, to
the Seller's knowledge, free and clear of any damage (or adequate reserves
therefor have been established) that would materially and adversely affect
its value as security for the related Mortgage Loan, and (ii) with respect
to the Mortgaged Properties securing the Mortgage Loans that were not the
subject of an engineering report within 18 months prior to the Cut-off
Date as set forth on Schedule B-1 to this Exhibit B, each Mortgaged
Property is in good repair and condition and all building systems
contained therein are in good working order (or adequate reserves therefor
have been established) and each Mortgaged Property is free of structural
defects, in each case, that would materially and adversely affect its
value as security for the related Mortgage Loan as of the date hereof. The
Seller has received no notice of the commencement of any proceeding for
the condemnation of all or any material portion of any Mortgaged Property.
To the Seller's knowledge (based on surveys and/or title insurance
obtained in connection with the origination of the Mortgage Loans), as of
the date of the origination of each Mortgage Loan, all of the material
improvements on the related Mortgaged Property that were considered in
determining the appraised value of the Mortgaged Property lay wholly
within the boundaries and building restriction lines of such property and
do not encroach on any third party easements on the Mortgaged Property,
except for encroachments that are insured against by the mortgagee's title
insurance policy referred to herein or that do not materially and
adversely affect the value or marketability of such Mortgaged Property,
and no improvements on adjoining properties materially encroached upon
such Mortgaged Property so as to materially and adversely affect the value
or marketability of such Mortgaged Property, except those encroachments
that are insured against by the Title Policy referred to herein.
8) Title Insurance. Each Mortgaged Property is covered by an
American Land Title Association (or an equivalent form of) mortgagee's
title insurance policy or a marked-up title insurance commitment (on which
the required premium has been paid) which evidences such title insurance
policy (the "Title Policy") in the original principal amount of the
related Mortgage Loan after all advances of principal. Each Title Policy
insures that the related Mortgage is a valid first priority lien on such
Mortgaged Property, subject only to Permitted Liens. Each Title Policy
(or, if it has yet to be issued, the coverage to be provided thereby) is
in full force and effect, all premiums thereon have been paid, and no
material claims have been made thereunder and no claims have been paid
thereunder. No holder of the related Mortgage has done, by act or
omission, anything that would materially impair the coverage under such
Title Policy. Immediately following the transfer and assignment of the
related Mortgage Loan to the Trustee, such Title Policy (or, if it has yet
to be issued, the coverage to be provided thereby) will inure to the
benefit of the Trustee without the consent of or notice to the insurer. To
the Seller's knowledge, the insurer issuing such Title Policy is qualified
to do business in the jurisdiction in which the related Mortgaged Property
is located.
9) No Holdbacks. The proceeds of each Mortgage Loan have been fully
disbursed and there is no obligation for future advances with respect
thereto. With respect to each Mortgage Loan, any and all requirements as
to completion of any on-site or off-site improvement and as to
disbursements of any funds escrowed for such purpose that were to have
been complied with on or before the Closing Date have been complied with,
or any such funds so escrowed have not been released.
10) Mortgage Provisions. The Mortgage Note or Mortgage for each
Mortgage Loan, together with applicable state law, contains customary and
enforceable provisions (subject to the exceptions set forth in paragraph
13) such as to render the rights and remedies of the holder thereof
adequate for the practical realization against the related Mortgaged
Property of the principal benefits of the security intended to be provided
thereby.
11) Trustee under Deed of Trust. If any Mortgage is a deed of trust,
(i) a trustee, duly qualified under applicable law to serve as such, is
properly designated and serving under such Mortgage, and (ii) no fees or
expenses are payable to such trustee by the Seller, the Purchaser or any
transferee thereof except in connection with a trustee's sale after
default by the related Mortgagor or in connection with any full or partial
release of the related Mortgaged Property or related security for the
related Mortgage Loan.
12) Environmental Conditions.
i) With respect to the Mortgaged Properties securing the
Mortgage Loans that were the subject of an environmental site
assessment within 18 months prior to the Cut-off Date as set forth
on Schedule B-1 to this Exhibit B, an environmental site assessment
(meeting American Society for Testing and Materials standards), or
an update of a previous such report, was performed with respect to
each Mortgaged Property in connection with the origination or the
sale of the related Mortgage Loan, a report of each such assessment
(or the most recent assessment with respect to each Mortgaged
Property) (an "Environmental Report") has been delivered to the
Purchaser, and the Seller has no knowledge of any material and
adverse environmental condition or circumstance affecting any
Mortgaged Property that was not disclosed in such report. Each
Mortgage requires the related Mortgagor to comply with all
applicable federal, state and local environmental laws and
regulations. Where such assessment disclosed the existence of a
material and adverse environmental condition or circumstance
affecting any Mortgaged Property, (i) a party not related to the
Mortgagor was identified as the responsible party for such condition
or circumstance, (ii) a party related to the Mortgagor having
financial resources reasonably estimated to be adequate to address
the situation is required to take action, or (iii) environmental
insurance covering such condition was obtained or must be maintained
until the condition is remediated, or (iv) the related Mortgagor was
required either to provide additional security that was deemed to be
sufficient by the originator in light of the circumstances and/or to
establish an operations and maintenance plan. In the case of each
Mortgage Loan set forth on Schedule B-1 to this Exhibit B, (i) such
Mortgage Loan is the subject of a Secured Creditor Impaired Property
Policy, issued by the issuer set forth on Schedule B-1 (the "Policy
Issuer") and effective as of the date thereof (the "Environmental
Insurance Policy"), (ii) the Environmental Insurance Policy is in
full force and effect, (iii)(a) a property condition or engineering
report was prepared, if the related Mortgaged Property was
constructed prior to 1985, with respect to asbestos containing
materials ("ACM") and, if the related Mortgaged Property is a
multifamily property, with respect to radon gas ("RG") and lead
based paint ("LBP") and (b) if such report disclosed the existence
of a material and adverse LBP, ACM or RG environmental condition or
circumstance affecting the related Mortgaged Property, the related
Mortgagor (A) was required to remediate the identified condition
prior to closing the Mortgage Loan or provide additional security or
establish with the mortgagee a reserve from loan proceeds, in an
amount deemed to be sufficient by the Seller, for the remediation of
the problem, and/or (B) agreed in the Mortgage Loan documents to
establish an operations and maintenance plan after the closing of
the Mortgage Loan, (iv) on the effective date of the Environmental
Insurance Policy, Seller as originator had no knowledge of any
material and adverse environmental condition or circumstance
affecting the Mortgaged Property (other than the existence of LBP,
ACM or RG) that was not disclosed to the Policy Issuer in one or
more of the following: (a) the application for insurance, (b) a
borrower questionnaire that was provided to the Policy Issuer, or
(c) an engineering or other report provided to the Policy Issuer,
and (v) the premium of any Environmental Insurance Policy has been
paid through the maturity of the policy's term and the term of such
policy extends at least five years beyond the maturity of the
Mortgage Loan.
ii) With respect to the Mortgaged Properties securing the
Mortgage Loans that were not the subject of an environmental site
assessment within 18 months prior to the Cut-off Date as set forth
on Schedule B-1 to this Exhibit B, (i) no Hazardous Material is
present on such Mortgaged Property such that (1) the value of such
Mortgaged Property is materially and adversely affected or (2) under
applicable federal, state or local law, (a) such Hazardous Material
could be required to be eliminated at a cost materially and
adversely affecting the value of the Mortgaged Property before such
Mortgaged Property could be altered, renovated, demolished or
transferred, or (b) the presence of such Hazardous Material could
(upon action by the appropriate governmental authorities) subject
the owner of such Mortgaged Property, or the holders of a security
interest therein, to liability for the cost of eliminating such
Hazardous Material or the hazard created thereby at a cost
materially and adversely affecting the value of the Mortgaged
Property, and (ii) such Mortgaged Property is in material compliance
with all applicable federal, state and local laws pertaining to
Hazardous Materials or environmental hazards, any noncompliance with
such laws does not have a material adverse effect on the value of
such Mortgaged Property, and neither Seller nor, to Seller's
knowledge, the related Mortgagor or any current tenant thereon, has
received any notice of violation or potential violation of any such
law.
iii) "Hazardous Materials" means gasoline, petroleum products,
explosives, radioactive materials, polychlorinated biphenyls or
related or similar materials and any other substance or material as
may be defined as a hazardous or toxic substance by any federal,
state or local environmental law ordinance, rule, regulation or
order, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42
U.S.C. ▇▇.▇▇. 9601 et seq.), the Hazardous Materials Transportation
Act as amended (42 U.S.C. ▇▇.▇▇. 6901 et seq.), the Federal Water
Pollution Control Act as amended (33 U.S.C. ▇▇.▇▇. 1251 et seq.),
the Clean Air Act (42 U.S.C. ▇▇.▇▇. 1251 et seq.) and any
regulations promulgated pursuant thereto.
13) Loan Document Status. Each Mortgage Note, Mortgage and other
agreement that evidences or secures such Mortgage Loan and was executed by
or on behalf of the related Mortgagor is the legal, valid and binding
obligation of the maker thereof (subject to any non-recourse provisions
contained in any of the foregoing agreements and any applicable state
anti-deficiency or market value limit deficiency legislation), enforceable
in accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors' rights generally, and by general principles of
equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law) and there is no valid defense,
counterclaim or right of offset or rescission available to the related
Mortgagor with respect to such Mortgage Note, Mortgage or other agreement.
14) Insurance. Each Mortgaged Property is, and is required pursuant
to the related Mortgage to be, insured by (a) a fire and extended perils
insurance policy providing coverage against loss or damage sustained by
reason of fire, lightning, windstorm, hail, explosion, riot, civil
commotion, aircraft, vehicles and smoke, and, to the extent required as of
the date of origination by the originator of such Mortgage Loan consistent
with its normal commercial mortgage lending practices, against other risks
insured against by persons operating like properties in the locality of
the Mortgaged Property in an amount not less than the lesser of the
principal balance of the related Mortgage Loan and the replacement cost of
the Mortgaged Property, and contains no provisions for a deduction for
depreciation, and not less than the amount necessary to avoid the
operation of any co-insurance provisions with respect to the Mortgaged
Property; (b) a business interruption or rental loss insurance policy, in
an amount at least equal to six months of operations of the Mortgaged
Property; (c) a flood insurance policy (if any portion of buildings or
other structures on the Mortgaged Property are located in an area
identified by the Federal Emergency Management Agency as having special
flood hazards and the Federal Emergency Management Agency requires flood
insurance to be maintained); (d) a comprehensive general liability
insurance policy in amounts as are generally required by commercial
mortgage lenders, and in any event not less than $1 million per
occurrence; and (e) if the Mortgaged Property is located in Florida or
within 25 miles of the coast of Texas, Louisiana, Mississippi, Alabama,
Georgia, North Carolina or South Carolina, windstorm insurance in an
amount at least equal to the lesser of (i) the outstanding principal
balance of such Mortgage Loan and (ii) 100% of the full insurable value,
or 100% of the replacement cost, of the improvements located on the
related Mortgaged Property. An architectural or engineering consultant has
performed an analysis of each of the Mortgaged Properties located in
seismic zone 3 or 4 in order to evaluate the structural and seismic
condition of such property, for the sole purpose of assessing the probable
maximum loss ("PML") for the Mortgaged Property in the event of an
earthquake. In such instance, the PML was based on a 475-year lookback
with a 10% probability of exceedance in a 50-year period. If a seismic
report concluded that the PML on a Mortgaged Property would exceed 20% of
the amount of the replacement costs of the improvements, earthquake
insurance by an insurer rated at least "A-:V" (or the equivalent) by A.M.
Best Company or "BBB-" (or the equivalent) from S&P or Fitch. Such
insurance policy contains a standard mortgagee clause that names the
mortgagee as an additional insured in the case of liability insurance
policies and as a loss payee in the case of property insurance policies
and requires prior notice to the holder of the Mortgage of termination or
cancellation. No such notice has been received, including any notice of
nonpayment of premiums, that has not been cured. Each Mortgage obligates
the related Mortgagor to maintain all such insurance and, upon such
Mortgagor's failure to do so, authorizes the holder of the Mortgage to
maintain such insurance at the Mortgagor's cost and expense and to seek
reimbursement therefor from such Mortgagor. Each Mortgage provides that
casualty insurance proceeds will be applied (a) to the restoration or
repair of the related Mortgaged Property, (b) to the restoration or repair
of the related Mortgaged Property, with any excess insurance proceeds
after restoration or repair being paid to the Mortgagor, or (c) to the
reduction of the principal amount of the Mortgage Loan.
15) Taxes and Assessments. As of the Closing Date, there are no
delinquent or unpaid taxes, assessments (including assessments payable in
future installments) or other outstanding charges affecting any Mortgaged
Property that are or may become a lien of priority equal to or higher than
the lien of the related Mortgage. For purposes of this representation and
warranty, real property taxes and assessments shall not be considered
unpaid until the date on which interest or penalties would be first
payable thereon.
16) Mortgagor Bankruptcy. No Mortgaged Property, nor any portion
thereof is the subject of, and no Mortgagor under a Mortgage loan is, a
debtor in any state or federal bankruptcy or insolvency or similar
proceeding.
17) Leasehold Estate. Each Mortgaged Property consists of a fee
simple estate in real estate or, if the related Mortgage Loan is secured
in whole or in part by the interest of a Mortgagor as a lessee under a
ground lease of a Mortgaged Property (a "Ground Lease"), by the related
Mortgagor's interest in the Ground Lease but not by the related fee
interest in such Mortgaged Property (the "Fee Interest"), and as to such
Ground Leases:
i) Such Ground Lease or a memorandum thereof has been or will
be duly recorded; such Ground Lease (or the related estoppel letter
or lender protection agreement between the Seller and related
lessor) does not prohibit the current use of the Mortgaged Property
and does not prohibit the interest of the lessee thereunder to be
encumbered by the related Mortgage; and there has been no material
change in the payment terms of such Ground Lease since the
origination of the related Mortgage Loan, with the exception of
material changes reflected in written instruments that are a part of
the related Mortgage File;
ii) The lessee's interest in such Ground Lease is not subject
to any liens or encumbrances superior to, or of equal priority with,
the related Mortgage, other than Permitted Liens;
iii) The Mortgagor's interest in such Ground Lease is
assignable to the Purchaser and its successors and assigns upon
notice to, but without the consent of, the lessor thereunder (or, if
such consent is required, it has been obtained prior to the Closing
Date) and, in the event that it is so assigned, is further
assignable by the Purchaser and its successors and assigns upon
notice to, but without the need to obtain the consent of, such
lessor or if such lessor's consent is required it cannot be
unreasonably withheld;
iv) Such Ground Lease is in full force and effect, and the
Ground Lease provides that no material amendment to such Ground
Lease is binding on a mortgagee unless the mortgagee has consented
thereto, and the Seller has received no notice that an event of
default has occurred thereunder, and, to the Seller's knowledge,
there exists no condition that, but for the passage of time or the
giving of notice, or both, would result in an event of default under
the terms of such Ground Lease;
v) Such Ground Lease or an estoppel letter or other agreement,
(A) requires the lessor under such Ground Lease to give notice of
any default by the lessee to the holder of the Mortgage; and (B)
provides that no notice of termination given under such Ground Lease
is effective against the holder of the Mortgage unless a copy of
such notice has been delivered to such holder and the lessor has
offered or is required to enter into a new lease with such holder on
terms that do not materially vary from the economic terms of the
Ground Lease.
vi) A mortgagee is permitted a reasonable opportunity
(including, where necessary, sufficient time to gain possession of
the interest of the lessee under such Ground Lease) to cure any
default under such Ground Lease, which is curable after the receipt
of notice of any such default, before the lessor thereunder may
terminate such Ground Lease;
vii) Such Ground Lease has an original term (including any
extension options set forth therein) which extends not less than
twenty years beyond the Stated Maturity Date of the related Mortgage
Loan;
viii) Under the terms of such Ground Lease and the related
Mortgage, taken together, any related insurance proceeds or
condemnation award awarded to the holder of the ground lease
interest will be applied either (A) to the repair or restoration of
all or part of the related Mortgaged Property, with the mortgagee or
a trustee appointed by the related Mortgage having the right to hold
and disburse such proceeds as the repair or restoration progresses
(except in such cases where a provision entitling a third party to
hold and disburse such proceeds would not be viewed as commercially
unreasonable by a prudent commercial mortgage lender), or (B) to the
payment of the outstanding principal balance of the Mortgage Loan
together with any accrued interest thereon;
ix) Such Ground Lease does not impose any restrictions on
subletting which would be viewed as commercially unreasonable by
prudent commercial mortgage lenders lending on a similar Mortgaged
Property in the lending area where the Mortgaged Property is
located; and such Ground Lease contains a covenant that the lessor
thereunder is not permitted, in the absence of an uncured default,
to disturb the possession, interest or quiet enjoyment of the lessee
thereunder for any reason, or in any manner, which would materially
adversely affect the security provided by the related Mortgage; and
x) Such Ground Lease requires the Lessor to enter into a new
lease upon termination of such Ground Lease or if such Ground Lease
is rejected in a bankruptcy proceeding.
18) Qualified Mortgage. Such Mortgage Loan is a "qualified mortgage"
within the meaning of Section 860G(a)(3) of the Code and Treasury
regulation section 1.860G-2(a), and the related Mortgaged Property, if
acquired in connection with the default or imminent default of such
Mortgage Loan, would constitute "foreclosure property" within the meaning
of Section 860G(a)(8) (without regard to Section 856(e)(4) of the Code).
19) Escrow Deposits. All escrow deposits and payments relating to
each Mortgage Loan that are, as of the Closing Date, required to be
deposited or paid have been so deposited or paid.
20) Advancement of Funds by the Seller. No holder of a Mortgage Loan
has advanced funds or induced, solicited or knowingly received any advance
of funds from a party other than the owner of the related Mortgaged
Property, directly or indirectly, for the payment of any amount required
by such Mortgage Loan.
21) No Mechanics' Liens. Each Mortgaged Property is free and clear
of any and all mechanics' and materialmen's liens that are prior or equal
to the lien of the related Mortgage, and no rights are outstanding that
under law could give rise to any such lien that would be prior or equal to
the lien of the related Mortgage except, in each case, for liens insured
against by the Title Policy referred to herein.
22) Compliance with Usury Laws. Each Mortgage Loan complied with all
applicable usury laws in effect at its date of origination.
23) Cross-collateralization. Except as set forth on Schedule B-1 to
this Exhibit B, no Mortgage Loan is cross-collateralized or
cross-defaulted with any loan other than one or more other Mortgage Loans.
24) Releases of Mortgaged Property. Since origination, no material
portion of the related Mortgaged Property has been released from the lien
of the related Mortgage, in any manner which materially and adversely
affects the value of the Mortgage Loan or materially interferes with the
security intended to be provided by such Mortgage. The terms of the
related Mortgage or related Mortgage Loan documents do not provide for
release of any material portion of the Mortgaged Property from the lien of
the Mortgage except (a) in consideration of payment therefor of not less
than 125% of the related allocated loan amount of such Mortgaged Property,
(b) upon payment in full of such Mortgage Loan, (c) upon defeasance
permitted under the terms of such Mortgage Loan by means of substituting
for the Mortgaged Property (or, in the case of a Mortgage Loan secured by
multiple Mortgaged Properties, one or more of such Mortgaged Properties)
"government securities", as defined in the Investment Company Act of 1940,
as amended, sufficient to pay the Mortgage Loan in accordance with its
terms, (d) upon substitution of a replacement property with respect to
such Mortgage Loan as set forth on Schedule B-1 hereto, (e) where release
is conditional upon the satisfaction of certain objective underwriting and
legal requirements, the satisfaction of which would be acceptable to a
reasonably prudent commercial mortgage lender and the payment of a release
price that represents at least 125% of the appraised value of such
Mortgaged Property or (f) releases of unimproved out-parcels or other
portions of the Mortgaged Property which will not have a material adverse
effect on the underwritten value of the security for the Mortgage Loan and
which were not afforded any value in the appraisal obtained at the
origination of the Mortgage Loan.
25) No Equity Participation or Contingent Interest. No Mortgage Loan
contains any equity participation by the mortgagee or provides for
negative amortization (except that the ARD Loan may provide for the
accrual of interest at an increased rate after the Anticipated Repayment
Date) or for any contingent or additional interest in the form of
participation in the cash flow of the related Mortgaged Property.
26) No Material Default. There exists no material Event of Default,
breach, violation or event of acceleration (and, to the Seller's actual
knowledge, no event which, with the passage of time or the giving of
notice, or both, would constitute any of the foregoing) under the
documents evidencing or securing the Mortgage Loan, in any such case to
the extent the same materially and adversely affects the value of the
Mortgage Loan and the related Mortgaged Property; provided, however, that
this representation and warranty does not address or otherwise cover any
default, breach, violation or event of acceleration that specifically
pertains to any matter otherwise covered by any other representation and
warranty made by the Seller in any of paragraphs 3, 7, 12, 14, 15, 16 and
17 of this Exhibit B.
27) Inspections. The Seller (or if the Seller is not the originator,
the originator of the Mortgage Loan) has inspected or caused to be
inspected each Mortgaged Property in connection with the origination of
the related Mortgage Loan.
28) Local Law Compliance. Based on due diligence considered
reasonable by prudent commercial mortgage lenders in the lending area
where the Mortgaged Property is located, the improvements located on or
forming part of each Mortgaged Property comply with applicable zoning laws
and ordinances, or constitute a legal non-conforming use or structure or,
if any such improvement does not so comply, such non-compliance does not
materially and adversely affect the value of the related Mortgaged
Property, such value as determined by the appraisal performed at
origination or in connection with the sale of the related Mortgage Loan by
the Seller hereunder.
29) Junior Liens. None of the Mortgage Loans permits the related
Mortgaged Property to be encumbered by any lien (other than a Permitted
Encumbrance) junior to or of equal priority with the lien of the related
Mortgage without the prior written consent of the holder thereof or the
satisfaction of debt service coverage or similar criteria specified
therein. The Seller has no knowledge that any of the Mortgaged Properties
is encumbered by any lien junior to the lien of the related Mortgage.
30) Actions Concerning Mortgage Loans. To the knowledge of the
Seller, there are no actions, suits, or proceedings before any court,
administrative agency or arbitrator concerning any Mortgage Loan,
Mortgagor or related Mortgaged Property that might adversely affect title
to the Mortgaged Property or the validity or enforceability of the related
Mortgage or that might materially and adversely affect the value of the
Mortgaged Property as security for the Mortgage Loan or the use for which
the premises were intended.
31) Servicing. The servicing and collection practices used by the
Seller or any prior holder or servicer of each Mortgage Loan have been in
all material respects legal, proper and prudent and have met customary
industry standards.
32) Licenses and Permits. To the Seller's knowledge, based on due
diligence that it customarily performs in the origination of comparable
mortgage loans, as of the date of origination of each Mortgage Loan or as
of the date of the sale of the related Mortgage Loan by the Seller
hereunder, the related Mortgagor was in possession of all material
licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated.
33) Assisted Living Facility Regulation. If the Mortgaged Property
is operated as an assisted living facility, to the Seller's knowledge (a)
the related Mortgagor is in compliance in all material respects with all
federal and state laws applicable to the use and operation of the related
Mortgaged Property, and (b) if the operator of the Mortgaged Property
participates in Medicare or Medicaid programs, the facility is in
compliance in all material respects with the requirements for
participation in such programs.
34) Collateral in Trust. The Mortgage Note for each Mortgage Loan is
not secured by a pledge of any collateral that has not been assigned to
the Purchaser.
35) Due on Sale. Each Mortgage Loan contains a "due on sale" clause,
which provides for the acceleration of the payment of the unpaid principal
balance of the Mortgage Loan if, without prior written consent of the
holder of the Mortgage, the property subject to the Mortgage or any
material portion thereof, or a controlling interest in the related
Mortgagor, is transferred, sold, or encumbered; provided, however, that
certain Mortgage Loans provide a mechanism for the assumption of the loan
by a third party upon the Mortgagor's satisfaction of certain conditions
precedent, and upon payment of a transfer fee, if any, or transfer of
interests in the Mortgagor or constituent entities of the Mortgagor to a
third party or parties related to the Mortgagor upon the Mortgagor's
satisfaction of certain conditions precedent.
36) Single Purpose Entity. Each Mortgage Loan with a Cut-off Date
Principal Balance in excess of $5 million requires the Mortgagor to be for
at least as long as the Mortgage Loan is outstanding and, to the Seller's
knowledge, each such Mortgagor is, a Single Purpose Entity, the
organizational documents of the Mortgagor with respect to each Mortgage
Loan with a Cut-off Date Principal Balance in excess of $15 million
provide that the Mortgagor is a Single Purpose Entity and each Mortgage
Loan with a Cut-off Date Principal Balance of $20 million or more has a
counsel's opinion regarding non-consolidation of the Mortgagor in any
insolvency proceeding involving any other party. For this purpose, a
"Single Purpose Entity" shall mean an entity, other than an individual,
whose organizational documents (or if the Mortgage Loan has a Cut-off Date
Principal Balance equal to $15 million or less, its organizational
documents or Mortgage Loan documents) provide substantially to the effect
that it was formed or organized solely for the purpose of owning and
operating one or more of the Mortgaged Properties securing the Mortgage
Loans and prohibit it from engaging in any business unrelated to such
Mortgaged Property or Properties, and whose organizational documents
further provide, or which entity represented in the related Mortgage Loan
documents, substantially to the effect that it does not have any assets
other than those related to its interest in and operation of such
Mortgaged Property or Properties, or any indebtedness other than as
permitted by the related Mortgage(s) or the other related Mortgage Loan
documents, that it has its own books and records and accounts separate and
apart from any other person (other than a Mortgagor for a Mortgage Loan
that is cross-collateralized and cross-defaulted with the related Mortgage
Loan), and that it holds itself out as a legal entity, separate and apart
from any other person.
37) Non-Recourse Exceptions. The Mortgage Loan documents for each
Mortgage Loan provide that such Mortgage Loan constitutes either (a) the
recourse obligations of at least one natural person or (b) the
non-recourse obligations of the related Mortgagor, provided that at least
one natural person (and the Mortgagor if the Mortgagor is not a natural
person) is liable to the holder of the Mortgage Loan for damages arising
in the case of fraud or willful misrepresentation by the Mortgagor,
misappropriation of rents, insurance proceeds, or condemnation awards and
breaches of the environmental covenants in the Mortgage Loan documents.
38) Defeasance and Assumption Costs. The related Mortgage Loan
Documents provide that the related borrower is responsible for the payment
of all reasonable costs and expenses of the mortgagee incurred in
connection with the defeasance of such Mortgage Loan and the release of
the related Mortgaged Property, and the borrower is required to pay all
reasonable costs and expenses of the mortgagee associated with the
approval of an assumption of such Mortgage Loan.
39) Defeasance. No Mortgage Loan provides that it can be defeased
until the date that is more than two years after the Closing Date or
provides that it can be defeased with any property other than government
securities (as defined in Section 2(a)(16) of the Investment Company Act
of 1940, as amended) or any direct non-callable security issued or
guaranteed as to principal or interest by the United States.
40) Prepayment Premiums. As of the applicable date of origination of
each such Mortgage Loan, any prepayment premiums and yield maintenance
charges payable under the terms of the Mortgage Loans, in respect of
voluntary prepayments, constituted customary prepayment premiums and yield
maintenance charges for commercial mortgage loans.
41) Utilities. Each Mortgaged Property is served by public
utilities, water and sewer (or septic facilities) and otherwise
appropriate for the use in which the Mortgaged Property is currently being
utilized.
42) Single Asset REMIC. With respect to each of the single asset
REMICs, there has been no amendment, waiver, impairment, alteration, or
modification to any provision of the related REMIC declaration or to any
provisions of the related Mortgage Loan documents since the startup day of
the single asset REMIC. With respect to each of the single asset REMICs,
the single asset REMIC has been administered, the related Mortgage Loan
has been serviced, and each provision of the related REMIC declaration has
been complied with in a manner such that the single asset REMIC has not
failed to qualify as a REMIC for federal income tax purposes at any time
since the Startup Day.
43) Separate Tax Lots. Each related Mortgaged Property constitutes
one or more complete separate tax lots (or the related Mortgagor has
covenanted to obtain separate tax lots and a Person has indemnified the
mortgagee for any loss suffered in connection therewith or an escrow of
funds in an amount sufficient to pay taxes resulting from a breach thereof
has been established) or is subject to an endorsement under the related
title insurance policy.
44) No Fraud. In the origination and servicing of the Mortgage Loan,
neither the Seller nor any prior holder of the Mortgage Loan participated
in any fraud or intentional material misrepresentation with respect to the
Mortgage Loan. To Seller's knowledge, no Mortgagor or guarantor originated
a Mortgage Loan.
For purposes of these representations and warranties, the phrases "to the
knowledge of the Seller" or "to the Seller's knowledge" shall mean (except where
otherwise expressly set forth below) the actual state of knowledge of the Seller
(i) after the Seller's having conducted such inquiry and due diligence into such
matters as would be customarily performed by prudent institutional commercial or
multifamily, as applicable, mortgage lenders, and in all events as required by
the Seller's underwriting standards, at the time of the Seller's origination or
acquisition of the particular Mortgage Loan; and (ii) subsequent to such
origination, utilizing the monitoring practices customarily utilized by prudent
commercial or multifamily, as applicable, mortgage lenders with respect to
securitizable commercial or multifamily, as applicable, mortgage loans,
including knowledge of a representative of the loan servicer designated as the
party responsible for the knowledge of the servicer pertaining to the Mortgage
Loans. Also for purposes of these representations and warranties, the phrases
"to the actual knowledge of the Seller" or "to the Seller's actual knowledge"
shall mean (except where otherwise expressly set forth below) the actual state
of knowledge of the Seller without any express or implied obligation to make
inquiry. All information contained in the documents included in the definition
of Mortgage File in the Pooling and Servicing Agreement shall be deemed to be
within the knowledge and the actual knowledge of the Seller, to the extent that
the Seller or its closing counsel or custodian, if any, has reviewed or had
possession of such document at any time. For purposes of these representations
and warranties, to the extent that any representation or warranty is qualified
by the Seller's knowledge with respect to the contents of the Mortgage Note,
Mortgage, mortgagee's title policy and any letters of credit or Ground Leases,
if such document is not included in the Mortgage File, the Seller shall make
such representation or warranty without any such qualification. Wherever there
is a reference in a representation or warranty to receipt by, or possession of,
the Seller of any information or documents, or to any action taken by the Seller
or to any action which has not been taken by the Seller or its agents or
employees, such reference shall include the receipt or possession of such
information or documents by, or the taking of such action or the not taking such
action by, the Seller. For purposes of these representations and warranties,
when referring to the conduct of "reasonable prudent institutional commercial or
multifamily, as applicable mortgage lenders" (or similar such phrases and
terms), such conduct shall be measured by reference to the industry standards
generally in effect as of the date the related representation or warranty
relates to or is made.
It is understood and agreed that the representations and warranties set forth in
this Exhibit B shall survive delivery of the respective Mortgage Files to the
Purchaser and/or the Trustee and shall inure to the benefit of the Purchaser and
its successors and assigns (including without limitation the Trustee and the
holders of the Certificates), notwithstanding any restrictive or qualified
endorsement or assignment.
COBALT CMBS COMMERCIAL MORTGAGE TRUST 2006-C1
Schedule B - 1
WACHOVIA
Mortgage Loan Number Property Name
-------------------------------------------------------------------------------
115 CVS - Mobile, AL
125 CVS - Baton Rouge, LA
133 Walgreens - Harvey, LA
▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇
142 CVS - Chandler, AZ
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇, ▇▇
161 Dollar General - Ardmore, TN
166 Advance Auto - Columbia Heights, MN
167 Advance Auto - Fergus Falls, MN
Exhibit C
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
CWCapital 2006-C1
Exceptions to Representation 12
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Loans Description of Exception
--------------------------------------------------------------------------------------------------------------------------
Loan number 25 Greenwich Atrium Limited revisions were made to the environmental matters
section of the mortgage, such as "to the best of
Mortgagor's knowledge" qualifiers and an added limitation
on mortgagor's environmental liability for any events that
happen after the discharge of the mortgage.
--------------------------------------------------------------------------------------------------------------------------
Exception to Representation 23
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Loans Description of Exception
--------------------------------------------------------------------------------------------------------------------------
Loan Number 5 311 South ▇▇▇▇▇▇ The Mortgage Loan is cross-collateralized and
cross-defaulted with its related Companion Loan, which is
not included in the Trust Fund. In addition, each Companion
Loan is secured by the same Mortgaged Property and the same
Mortgage securing its related Mortgage Loan.
--------------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 35
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Loans Description of Exception
--------------------------------------------------------------------------------------------------------------------------
Loan number ▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇ Transfers of tenancy in common interests among and between
Loan number 78 Spyglass Hill Apartments then-existing tenants in common are permitted subject to
certain conditions.
Notwithstanding any of the foregoing, the Mortgagor shall
consent to one or more sales, conveyances or transfers of
the Mortgage Property or tenant in common interest subject
to certain conditions.
--------------------------------------------------------------------------------------------------------------------------
Loan number 142 CVS - Chandler, AZ The Mortgaged Property can be transferred by the Mortgagor
Loan number 133 Walgreens - Harvey, LA to an Affiliate or to a newly created entity wholly owned
by the beneficial owners of the Mortgagor subject to
certain conditions. The Mortgagor can transfer 100% of its
beneficial interest in the Mortgagor to one of ▇▇▇▇'▇
REIT's without consent of the Mortgagor.
--------------------------------------------------------------------------------------------------------------------------
Exceptions to Representation 36
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Loans Description of Exception
--------------------------------------------------------------------------------------------------------------------------
Loan number 7 ▇▇▇▇▇▇▇▇ Center Each Mortgage Loan has an original principal balance above
Loan number 10 Addison Corporate Center $15,000,000 and is not a single purpose bankruptcy remote
Loan number 13 San Lagos at Arrowhead borrower.
Highlands
Loan number 23 Rio Grande Plaza Homewood Suites
Loan number 27 The Crossings at Paso Robles II
Loan number 40 The Exchange at Lubbock
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Loan number 13 San Lagos at Arrowhead Highlands Each Mortgage Loan has an original principal balance above
Loan number 23 Rio Grande Plaza Homewood Suites $20,000,000 and does not have a counsel's opinion regarding
Loan number 27 The Crossings at Paso Robles II non-consolidation of the Mortgagor in any solvency
proceeding.
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Exceptions to Representation 37
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Loans Description of Exception
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Loan number 7 ▇▇▇▇▇▇▇▇ Center These loans do not have a guarantor who is a natural person.
Loan number 13 San Lagos at Arrowhead Highlands
Loan number 16 Carefree Pebble
Loan number 22 Valley View Pool
Loan number 25 Greenwich Atrium
Loan number 27 The Crossings at Paso Robles II
Loan number 30 Carefree Spring Valley
Loan number 40 The Exchange at Lubbock
Loan number 43 Arbutus Shopping Plaza
Loan number ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Loan number 55 Riviera Senior Living
Loan number 61 The Centre at Riverchase
Loan number 70 Tree Trail Village
Loan number 74 Five Forks Corner
Loan number ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Loan number 86 Town Center at Timber Springs
Loan number 115 CVS - Mobile, AL
Loan number 125 CVS - Baton Rouge, LA
Loan number ▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇, ▇▇
Loan number ▇▇▇ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇, ▇▇
Loan number ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇▇▇▇, ▇▇
Loan number ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇, ▇▇
Loan number 142 CVS - Chandler, AZ
Loan number 166 Advance Auto - Columbia Heights, MN
Loan number 167 Advance Auto - Fergus Falls, MN
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Loan Number 94 University Plaza In the event Lender forecloses on the property and the loan
is not repaid in full with the proceeds of the foreclosure,
Indemnitor shall be fully and jointly liable for an
aggregate amount not to exceed $200,000 of such deficiency.
If borrower provides to lender proof the property has a Debt
Service Coverage Ratio of at least 1.20:1.00 Borrower shall
no longer be responsible for the $200,000.
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Exceptions to Representation 17(v)
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Loans Description of Exception
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Loan number ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Ground Lease provides for notice of any default by lessee
to mortgagee but is silent as to whether failure to give
notice to mortgagee is effective against the mortgage.
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Exceptions to Representation 17(viii)
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Loans Description of Exception
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Loan number ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Ground lease provides that insurance proceeds or
condemnation awards will be applied to restoration but is
silent as to any right of mortgagee to control, supervise
or disburse the award or proceeds.
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Exceptions to Representation 17(x)
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Loans Description of Exception
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Loan number ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ Ground lessor will enter into a new lease with mortgagee
upon termination of the ground lease upon rejection of
ground lease in bankruptcy only if mortgagee cures all
defaults of lessee under ground lease.
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