EXHIBIT 99.2
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of May 1, 2006 (this
"Agreement"), is entered into among CWCAPITAL LLC, as an additional party with
respect to the mortgage loans identified on the schedule annexed hereto as
Exhibit A ("CWCapital"), CWCAPITAL MORTGAGE SECURITIES I LLC, as seller of the
mortgage loans identified on the schedule annexed hereto as Exhibit A ("CWCMSI"
or the "Seller") and WACHOVIA COMMERCIAL MORTGAGE SECURITIES, INC. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily and commercial mortgage loans (the "Mortgage Loans")
identified on the schedule (the "Mortgage Loan Schedule") annexed hereto as
Exhibit A. The Purchaser intends to deposit the Mortgage Loans, along with
certain other mortgage loans (the "Other Mortgage Loans"), 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"). One or more "real estate mortgage investment conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The Trust Fund
will be created and the Certificates will be issued pursuant to a pooling and
servicing agreement (the "Pooling and Servicing Agreement"), dated as of May 1,
2006, among the Purchaser, as depositor, Wachovia Bank, National Association, as
master servicer (in such capacity, the "Master Servicer"), CWCapital Asset
Management LLC, as special servicer (the "Special Servicer") and Xxxxx Fargo
Bank, N.A., as trustee (the "Trustee"). Capitalized terms used but not defined
herein (including the Schedules attached hereto) have the respective meanings
set forth in the Pooling and Servicing Agreement.
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 delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are expected to have
an aggregate principal balance of $69,728,090 (the "CWCMSI Mortgage Loan
Balance") (subject to a variance of plus or minus 5.0%) as of the close of
business on the Cut-Off Date, after giving effect to any payments due on or
before such date, whether or not such payments are received.
The CWCMSI Mortgage Loan Balance, together with the aggregate
principal balance of the Other Mortgage Loans as of the Cut-Off Date (after
giving effect to any payments due on or before such date whether or not such
payments are received), is expected to equal an aggregate principal balance (the
"Cut-Off Date Pool Balance") of $2,862,422,428 (subject to a variance of plus or
minus 5.0%). The purchase and sale of the Mortgage Loans shall take place May
31, 2006, or such other date as shall be mutually acceptable to the parties to
this Agreement (the "Closing Date"). The consideration (the "Aggregate Purchase
Price") for the Mortgage Loans shall be equal to (i) % of the CWCMSI
Mortgage Loan Balance as of the Cut-Off Date, plus (ii) $354,471, which amount
represents the amount of interest accrued on the CWCMSI 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.
The Aggregate Purchase Price shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the Closing Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt by the
Seller of the Aggregate Purchase Price and satisfaction of the other conditions
to closing that are for the benefit of the Seller, the Seller does hereby sell,
transfer, assign, set over and otherwise convey to the Purchaser, without
recourse (except as set forth in this Agreement), 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, on a servicing released basis, together with all
of the Seller's right, title and interest in and to the proceeds of any related
title, hazard, primary mortgage or other insurance proceeds.
(b) The Purchaser or its assignee shall 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 but collected on or after the Cut-Off Date, and
recoveries of principal and interest collected on or before the Cut-Off Date
(only in respect of principal and interest on the Mortgage Loans due on or
before the Cut-Off Date and principal prepayments thereon), shall belong to, and
shall be promptly remitted to, the Seller.
(c) No later than the Closing Date, the Seller shall, on behalf of
the Purchaser, deliver to the Trustee, the documents and instruments specified
below with respect to each Mortgage Loan (each a "Mortgage File"). All Mortgage
Files so delivered will be held by the Trustee in escrow at all times prior to
the Closing Date. Each Mortgage File shall contain the following documents:
(i) the original executed Mortgage Note including any power of
attorney related to the execution thereof, together with any and all
intervening endorsements thereon, endorsed on its face or by allonge
attached thereto (without recourse, representation or warranty, express or
implied) to the order of "Xxxxx Fargo Bank, N.A., as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2006-C25" or in blank (or a
lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto);
(ii) an original or copy of the Mortgage, together with any and all
intervening assignments thereof, in each case (unless not yet returned by
the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iii) an original or copy of any related Assignment of Leases (if
such item is a document separate from the Mortgage), together with any and
all intervening assignments thereof, in each case (unless not yet returned
by the applicable recording office) with evidence of recording indicated
thereon or certified by the applicable recording office;
(iv) an original executed assignment, in recordable form (except for
any missing recording information), of (a) the Mortgage, (b) any related
Assignment of Leases (if such item is a document separate from the
Mortgage and to the extent not already assigned pursuant to preceding
clause (a)) and (c) any other recorded document relating to the Mortgage
Loan otherwise included in the Mortgage File, in favor of "Xxxxx Fargo
Bank, N.A., as trustee for the registered holders of Wachovia Bank
Commercial Mortgage Trust, Commercial Mortgage Pass-Through Certificates,
Series 2006-C25", or in blank;
(v) an original assignment of all unrecorded documents relating to
the Mortgage Loan (to the extent not already assigned pursuant to clause
(iv) above), in favor of "Xxxxx Fargo Bank, N.A., as trustee for the
registered holders of Wachovia Bank Commercial Mortgage Trust, Commercial
Mortgage Pass-Through Certificates, Series 2006-C25", or in blank;
(vi) originals or copies of any modification, consolidation,
assumption and substitution agreements in those instances where the terms
or provisions of the Mortgage or Mortgage Note have been consolidated or
modified or the Mortgage Loan has been assumed or consolidated;
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued or
located, an original or copy of an irrevocable, binding commitment (which
may be a marked version of the policy that has been executed by an
authorized representative of the title company or an agreement to provide
the same pursuant to binding escrow instructions executed by an authorized
representative of the title company) to issue such title insurance policy;
(viii) any filed copies (bearing evidence of filing) or other
evidence of filing satisfactory to the Purchaser of any prior UCC
Financing Statements in favor of the originator of such Mortgage Loan or
in favor of any assignee prior to the Trustee (but only to the extent the
Seller had possession of such UCC Financing Statements prior to the
Closing Date) and, if there is an effective UCC Financing Statement and
continuation statement in favor of the Seller on record with the
applicable public office for UCC Financing Statements, an original UCC
Amendment, in form suitable for filing in favor of "Xxxxx Fargo Bank,
N.A., as trustee for the registered holders of Wachovia Bank Commercial
Mortgage Trust, Commercial Mortgage Pass-Through Certificates, Series
2006-C25, as assignee", or in blank;
(ix) an original or copy of (a) any Ground Lease, Memorandum of
Ground Lease and ground lessor estoppel, (b) any loan guaranty or
indemnity and (c) any environmental insurance policy;
(x) any intercreditor agreement relating to permitted debt
(including, without limitation, mezzanine debt) of the Mortgagor;
(xi) copies of any loan agreement, escrow agreement or security
agreement relating to such Mortgage Loan;
(xii) a copy of any letter of credit and related transfer documents
relating to such Mortgage Loan;
(xiii) copies of any management agreements and applicable transfer
or assignment documents;
(xiv) copies of any cash management agreements and applicable
transfer or assignment documents;
(xv) copies of franchise agreements and franchisor comfort letters,
if any, for hospitality properties and applicable transfer or assignment
documents; and
(xvi) with respect to any Companion Loan, all of the above documents
with respect to such Companion Loan and the related Intercreditor
Agreement; provided that a copy of each Mortgage Note relating to such
Companion Loan, rather than the original, shall be provided, and no
assignments shall be provided.
(d) The Seller shall take all actions reasonably necessary (i) to
permit the Trustee to fulfill its obligations pursuant to Section 2.01(d) of the
Pooling and Servicing Agreement and (ii) to perform its obligations described in
Section 2.01(d) of the Pooling and Servicing Agreement. Without limiting the
generality of the foregoing, if a draw upon a letter of credit is required
before its transfer to the Trust Fund can be completed, the Seller shall draw
upon such letter of credit for the benefit of the Trust Fund pursuant to written
instructions from the Master Servicer. The Seller shall reimburse the Trustee
for all reasonable costs and expenses, if any, incurred by the Trustee for
recording any documents described in Section 2(c)(iv)(c) hereof and filing any
assignments of UCC Financing Statements described in the proviso in the third to
last sentence in Section 2.01(d) of the Pooling and Servicing Agreement.
(e) All documents and records (except draft documents, privileged
communications and internal correspondence and credit, due diligence and other
underwriting analysis, documents, data or internal worksheets, memoranda,
communications and evaluations of the Seller and/or CWCapital) relating to each
Mortgage Loan and in the Seller's and/or CWCapital's possession (the "Additional
Mortgage Loan Documents") that are not required to be delivered to the Trustee
shall promptly be delivered or caused to be delivered by the Seller and/or
CWCapital to the Master Servicer or at the direction of the Master Servicer to
the appropriate sub-servicer, together with any related escrow amounts and
reserve amounts.
(f) The Seller shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any letters of
credit in the name of the Seller which secure any Mortgage Loan.
SECTION 3. Representations, Warranties and Covenants of Seller and
CWCapital.
(a) Each of CWCapital and the Seller hereby represents and warrants
to and covenants with the Purchaser, as of the date hereof, that:
(i) CWCapital and CWCMSI are each limited liability companies
organized and validly existing and in good standing under the laws of the
Commonwealth of Massachusetts and the State of Delaware, respectively, and
each of CWCapital and CWCMSI possesses all requisite authority, power,
licenses, permits and franchises 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 it and (assuming due authorization, execution and
delivery hereof by the Purchaser) constitutes a legal, valid and binding
obligation of it, enforceable against it in accordance with its terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium and other laws relating to or
affecting the enforcement of creditors' rights in general, and by general
equity principles (regardless of whether such enforcement is considered in
a proceeding in equity or at law), and by public policy considerations
underlying the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from liabilities under
applicable securities laws;
(iii) The execution and delivery of this Agreement by it and its
performance and compliance with the terms of this Agreement will not (A)
violate its certificate of formation or by-laws, (B) violate any law or
regulation or any administrative decree or order to which it is subject or
(C) constitute a material default (or an event which, with notice or lapse
of time, or both, would constitute a material default) under, or result in
the breach of, any material contract, agreement or other instrument to
which it is a party or by which it is bound;
(iv) It 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 its reasonable and good faith judgment,
materially and adversely affect the condition (financial or other) or
operations of it or its properties or have consequences that would
materially and adversely affect its performance hereunder;
(v) It is not a party to or bound by any agreement or instrument or
subject to any certificate of formation, by-laws or any other corporate
restriction or any judgment, order, writ, injunction, decree, law or
regulation that would, in it's reasonable and good faith judgment,
materially and adversely affect the ability of it to perform its
obligations under this Agreement or that requires the consent of any third
person to the execution of this Agreement or the performance by it of its
obligations under this Agreement (except to the extent such consent has
been obtained);
(vi) No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by it of or compliance by it with this Agreement or the
consummation of the transactions contemplated by this Agreement except as
have previously been obtained, and no bulk sale law applies to such
transactions;
(vii) No litigation is pending or, to its knowledge, threatened
against it that would, in its good faith and reasonable judgment, prohibit
its entering into this Agreement or materially and adversely affect the
performance by it of its obligations under this Agreement;
(viii) Under generally accepted accounting principles ("GAAP") and
for federal income tax purposes, the Seller will report the transfer of
the Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to the
Purchaser in exchange for consideration consisting of a cash amount equal
to the Aggregate Purchase Price. 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;
(ix) It hereby represents and warrants that the Prospectus (as
defined below) is appropriately responsive in all material respects to the
applicable requirements of Items 1104, 1110, 1111, 1117 and 1119 of
Regulation AB with respect to it and the CWCapital Mortgage Loans; and
(x) For so long as the Trust Fund is subject to the reporting
requirements of the Exchange Act, it shall provide the Purchaser (or with
respect to any Companion Loan that is deposited into another
securitization, the depositor in such other securitization) and the
Trustee with any Additional Form 10-K Disclosure and any Additional Form
10-D Disclosure set forth next to the Purchaser's name on Schedule U and
Schedule W, respectively, of the Pooling and Servicing Agreement within
the time periods set forth in the Pooling and Servicing Agreement.
(b) CWCapital and CWCMSI each hereby makes the representations and
warranties contained in Schedule I for the benefit of the Purchaser and the
Trustee for the benefit of the Certificateholders as of the Closing Date, with
respect to (and solely with respect to) each Mortgage Loan, which
representations and warranties are subject to the exceptions set forth on
Schedule II.
(c) With respect to the schedule of exceptions delivered by the
Trustee on the Closing Date, within fifteen (15) Business Days (or, in the
reasonable discretion of the Controlling Class Representative, thirty (30)
Business Days) of the Closing Date, with respect to the documents specified in
clauses (i), (ii), (vii), (ix) (solely with respect to Ground Leases) and (xii)
of the definition of Mortgage File, the Seller shall cure any material exception
listed therein (for the avoidance of doubt, any deficiencies with respect to the
documents specified in clause (ii) resulting solely from a delay in the return
of the related documents from the applicable recording office, shall be cured in
the time and manner described in Section 2.01(c) of the Pooling and Servicing
Agreement). If such exception is not so cured, the Seller shall either (1)
repurchase the related Mortgage Loan, (2) with respect to exceptions relating to
clause (xii) of the definition of "Mortgage File", deposit with the Trustee an
amount, to be held in trust in a Special Reserve Account pursuant to the Pooling
and Servicing Agreement, equal to the amount of the undelivered letter of credit
(in the alternative, the Seller may deliver to the Trustee, with a certified
copy to the Master Servicer, a letter of credit for the benefit of the Master
Servicer on behalf of the Trustee and upon the same terms and conditions as the
undelivered letter of credit) which the Master Servicer on behalf of the Trustee
may use (or draw upon, as the case may be) under the same circumstances and
conditions as the Master Servicer would have been entitled to draw on the
undelivered letter of credit, or (3) with respect to any exceptions relating to
clauses (i), (ii) and (vii), deposit with the Trustee an amount, to be held in
trust in a Special Reserve Account pursuant to the Pooling and Servicing
Agreement, equal to 25% of the Stated Principal Balance of the related Mortgage
Loan on such date. Any funds or letter of credit deposited pursuant to clauses
(2) and (3) shall be held by the Trustee until the earlier of (x) the date on
which the Master Servicer certifies to the Trustee and the Controlling Class
Representative that such exception has been cured (or the Trustee certifies the
same to the Controlling Class Representative), at which time such funds or
letter of credit, as applicable, shall be returned to the Seller and (y) thirty
(30) Business Days or, if the Controlling Class Representative has extended the
cure period, forty-five (45) Business Days after the Closing Date; provided,
however, that if such exception is not cured within such thirty (30) Business
Days or forty-five (45) Business Days, as the case may be, (A) in the case of
clause (2), the Trustee shall retain the funds or letter of credit, as
applicable, or (B) in the case of clause (3), the Seller shall repurchase the
related Mortgage Loan in accordance with the terms and conditions of this
Agreement, at which time such funds shall be applied to the Purchase Price of
the related Mortgage Loan and any letter of credit will be returned to the
Seller.
If the Seller or CWCapital receives written notice of a Document
Defect or a Breach pursuant to Section 2.03(a) of the Pooling and Servicing
Agreement relating to a Mortgage Loan, then the Seller shall, not later than
ninety (90) days from receipt of such notice (or, in the case of a Document
Defect or Breach relating to a Mortgage Loan not being a "qualified mortgage"
within the meaning of the REMIC Provisions (a "Qualified Mortgage"), not later
than ninety (90) days from the date that any party to the Pooling and Servicing
Agreement discovers such Document Defect or Breach; provided the Seller or
CWCapital receives such notice in a timely manner), if such Document Defect or
Breach shall materially and adversely affect the value of the applicable
Mortgage Loan, the interest of the Trust Fund therein or the interests of any
Certificateholder, cure such Document Defect or Breach, as the case may be, in
all material respects, which shall include payment of actual or provable losses
and any Additional Trust Fund Expenses directly resulting from any such Document
Defect or Breach or, if such Document Defect or Breach (other than omissions
solely due to a document not having been returned by the related recording
office) cannot be cured within such 90-day period, (i) repurchase the affected
Mortgage Loan at the applicable Purchase Price not later than the end of such
90-day period or (ii) substitute a Qualified Substitute Mortgage Loan for such
affected Mortgage Loan not later than the end of such 90-day period (and in no
event later than the second anniversary of the Closing Date) and pay the Master
Servicer for deposit into the Certificate Account, any Substitution Shortfall
Amount in connection therewith; provided, however, that unless the Breach would
cause the Mortgage Loan not to be a Qualified Mortgage, and if such Document
Defect or Breach is capable of being cured but not within such 90-day period and
the Seller has commenced and is diligently proceeding with the cure of such
Document Defect or Breach within such 90-day period, the Seller shall have an
additional ninety (90) days to complete such cure (or, failing such cure, to
repurchase or substitute the related Mortgage Loan); provided, further, that
with respect to such additional 90-day period, the Seller shall have delivered
an officer's certificate to the Trustee setting forth what actions the Seller is
pursuing in connection with the cure thereof and stating that the Seller
anticipates that such Document Defect or Breach will be cured within the
additional 90-day period; provided, further, that no Document Defect (other than
with respect to a Mortgage Note, Mortgage, title insurance policy, Ground Lease,
any letter of credit, any franchise agreement, any comfort letter and (if
required) any comfort letter transfer documents (collectively, the "Core
Material Documents")) shall be considered to materially and adversely affect the
value of the related Mortgage Loan, the interests of the Trust Fund therein or
the interests of any Certificateholder unless the document with respect to which
the Document Defect exists is required in connection with an imminent
enforcement of the mortgagee's rights or remedies under the related Mortgage
Loan, defending any claim asserted by any Mortgagor or third party with respect
to the Mortgage Loan, establishing the validity or priority of any lien or any
collateral securing the Mortgage Loan or for any immediate significant servicing
obligations; provided, further, with respect to Document Defects which
materially and adversely affect the interests of any Certificateholder, the
interests of the Trust Fund therein or the value of the related Mortgage Loan,
other than with respect to Document Defects relating to the Core Material
Documents, any applicable cure period following the initial 90-day cure period
may be extended by the Master Servicer or the Special Servicer if the document
involved is not needed imminently. Such extension will end upon thirty (30) days
notice of such need as reasonably determined by the Master Servicer or Special
Servicer (with a possible 30-day extension if the Master Servicer or Special
Servicer agrees that the Seller is diligently pursuing a cure). The Seller shall
cure all Document Defects which materially and adversely affect the interests of
any Certificateholder, the interests of the Trust Fund therein or the value of
the related Mortgage Loan, regardless of the document involved, no later than
two years following the Closing Date; provided that the initial 90-day cure
period referenced in this paragraph may not be reduced. For a period of two
years from the Closing Date, so long as there remains any Mortgage File relating
to a Mortgage Loan as to which there is any uncured Document Defect or Breach,
the Seller shall provide the officer's certificate to the Trustee described
above as to the reasons such Document Defect or Breach remains uncured and as to
the actions being taken to pursue cure. Notwithstanding the foregoing, the
delivery of a commitment to issue a policy of lender's title insurance as
described in Representation 12 of Schedule I hereof in lieu of the delivery of
the actual policy of lender's title insurance shall not be considered a Document
Defect or Breach with respect to any Mortgage File if such actual policy of
insurance is delivered to the Trustee or a Custodian on its behalf not later
than the 90th day following the Closing Date.
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage Loan is
cross-collateralized and cross-defaulted with one or more other Mortgage Loans
(each, a "Crossed Loan"), and (iii) the applicable Document Defect or Breach
does not constitute a Document Defect or Breach, as the case may be, as to any
other Crossed Loan in such Crossed Group (without regard to this paragraph),
then the applicable Document Defect or Breach, as the case may be, will be
deemed to constitute a Document Defect or Breach, as the case may be, as to any
other Crossed Loan in the Crossed Group for purposes of this paragraph, and the
Seller will be required to repurchase or substitute for all of the remaining
Crossed Loan(s) in the related Crossed Group as provided in the immediately
preceding paragraph unless such other Crossed Loans in such Crossed Group
satisfy the Crossed Loan Repurchase Criteria and satisfy all other criteria for
substitution or repurchase of Mortgage Loans set forth herein. In the event that
the remaining Crossed Loans satisfy the aforementioned criteria, the Seller may
elect either to repurchase or substitute for only the affected Crossed Loan as
to which the related Breach or Document Defect exists or to repurchase or
substitute for all of the Crossed Loans in the related Crossed Group. The Seller
shall be responsible for the cost of any Appraisal required to be obtained by
the Master Servicer to determine if the Crossed Loan Repurchase Criteria have
been satisfied, so long as the scope and cost of such Appraisal has been
approved by the Seller (such approval not to be unreasonably withheld).
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed above while the
Trustee continues to hold any other Crossed Loans in such Crossed Group, neither
the Seller nor the Purchaser shall enforce any remedies against the other's
Primary Collateral, but each is permitted to exercise remedies against the
Primary Collateral securing its respective Crossed Loans, including with respect
to the Trustee, the Primary Collateral securing Crossed Loans still held by the
Trustee.
If the exercise of remedies by one party would materially impair the
ability of the other party to exercise its remedies with respect to the Primary
Collateral securing the Crossed Loans held by such party, then the Seller and
the Purchaser shall forbear from exercising such remedies until the Mortgage
Loan documents evidencing and securing the relevant Crossed Loans can be
modified in a manner that complies with this Agreement to remove the threat of
material impairment as a result of the exercise of remedies or some other
accommodation can be reached. Any reserve or other cash collateral or letters of
credit securing the Crossed Loans shall be allocated between such Crossed Loans
in accordance with the Mortgage Loan documents, or otherwise on a pro rata basis
based upon their outstanding Stated Principal Balances. Notwithstanding the
foregoing, if a Crossed Loan included in the Trust Fund is modified to terminate
the related cross-collateralization and/or cross-default provisions, as a
condition to such modification, the Seller shall furnish to the Trustee an
Opinion of Counsel that any modification shall not cause an Adverse REMIC Event.
Any expenses incurred in good faith by the Purchaser in connection with such
modification or accommodation (including, but not limited to, recoverable
attorney fees) shall be paid by the Seller.
(d) In connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a certificate
from a Servicing Officer certifying as to the receipt of the Purchase Price or
Substitution Shortfall Amount(s), as applicable, in the Certificate Account, and
the delivery of the Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively, if applicable (i) the Trustee shall execute and deliver such
endorsements and assignments as are provided to it by the Master Servicer, in
each case without recourse, representation or warranty, as shall be necessary to
vest in the Seller, the legal and beneficial ownership of each repurchased
Mortgage Loan or substituted Mortgage Loan, as applicable, (ii) the Trustee, the
Custodian, the Master Servicer and the Special Servicer shall each tender to the
Seller, upon delivery to each of them of a receipt executed by the Seller, all
portions of the Mortgage File and other documents pertaining to such Mortgage
Loan possessed by it and (iii) the Master Servicer and the Special Servicer
shall release to the Seller any Escrow Payments and Reserve Funds held by it in
respect of such repurchased or substituted Mortgage Loans.
(e) Without limiting the remedies of the Purchaser, the
Certificateholders or the Trustee on behalf of the Certificateholders pursuant
to this Agreement, it is acknowledged that the representations and warranties
are being made for risk allocation purposes. This Section 3 provides the sole
remedy available to the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage File or any
Breach of any representation or warranty set forth in or required to be made
pursuant to this Section 3; provided that for purposes of the remedies set forth
in this Section 3, the sole recourse with respect to the Mortgage Loans shall be
against CWCapital. Nothing in this Agreement shall prohibit the Purchaser or its
assigns (including the Master Servicer and/or the Special Servicer) from
pursuing any course of action authorized by the Pooling and Servicing Agreement
while the Purchaser asserts a claim or brings a cause of action to enforce any
rights set forth herein against the Seller or CWCapital.
(f) With respect to any Mortgage Loan which has become a Defaulted
Mortgage Loan under the Pooling and Servicing Agreement or with respect to which
the related Mortgaged Property has been foreclosed and which is the subject of a
repurchase claim under this Agreement, in accordance with Section 2.03 of the
Pooling and Servicing Agreement, the Special Servicer, with the consent of the
Controlling Class Representative, shall notify the Seller and CWCapital in
writing of its intention to liquidate such Defaulted Mortgage Loan or REO
Property at least forty-five (45) days prior to any such action. If (a) the
Seller consents to such sale and voluntarily agrees to repurchase such Defaulted
Mortgage Loan or REO Property or (b) a court of competent jurisdiction
determines that the Seller is liable under this Agreement to repurchase such
Defaulted Mortgage Loan or REO Property, then the Seller shall remit to the
Purchaser an amount equal to the difference if any of the price of such
Defaulted Mortgage Loan or REO Property as sold and the price at which the
Seller would have had to repurchase such Defaulted Mortgage Loan or REO Property
under this Agreement. The Seller shall have ten (10) Business Days after receipt
of notice to determine whether or not to consent to such sale. If the Seller
does not consent to such sale, the Special Servicer shall contract with a
Determination Party (as defined in the Pooling and Servicing Agreement) as to
the merits of such proposed sale. If the related Determination Party determines
that such proposed sale is in accordance with the Servicing Standards and the
provisions of the Pooling and Servicing Agreement with respect to the sale of
Defaulted Mortgage Loans and REO Properties and, subsequent to such sale, a
court of competent jurisdiction determines that the Seller was liable under this
Agreement and required to repurchase such Defaulted Mortgage Loan or REO
Property in accordance with the terms hereof, then the Seller shall remit to the
Purchaser an amount equal to the difference (if any) between the proceeds of the
related action and the price at which the Seller would have been obligated to
pay had the Seller repurchased such Defaulted Mortgage Loan or REO Property
prior to the execution of a binding contract of sale with a third party in
accordance with the terms hereof, including the costs related to contracting
with the related Determination Party; provided that the foregoing procedure in
this Section 3(f) shall not preclude the Seller from repurchasing the Defaulted
Mortgage Loan or REO Property prior to the execution of a binding contract of
sale with a third party in accordance with the other provisions of this Section
3 (excluding this Section 3(f)). If the related Determination Party determines
that the sale of the related Defaulted Mortgage Loan or REO Property is not in
accordance with the Servicing Standards and the provisions of the Pooling and
Servicing Agreement with respect to the sale of Defaulted Mortgage Loans and REO
Properties and the Special Servicer subsequently sells such Mortgage Loan or REO
Property, then the Seller will not be liable for any such difference (nor any
cost of contracting with the Determination Party).
(g) Notwithstanding the foregoing, if there exists a Breach relating
to whether or not the Mortgage Loan documents or any particular Mortgage Loan
document requires the related Mortgagor to bear the costs and expenses
associated with any particular action or matter under such Mortgage Loan
document(s) with respect to matters described in Representations 23 and 43 of
Schedule I hereof, then the Purchaser shall direct the Seller in writing to wire
transfer to the Master Servicer for deposit into the Certificate Account, within
ninety (90) days of the Seller's receipt of such direction, the amount of any
such costs and expenses borne by the Purchaser, the Certificateholders, the
Master Servicer, the Special Servicer and the Trustee on their behalf that are
the basis of such Breach. Upon its making such deposit, the Seller shall be
deemed to have cured such Breach in all respects. Provided such payment is made
in full, this paragraph describes the sole remedy available to the Purchaser,
the Certificateholders, the Master Servicer, the Special Servicer and the
Trustee on their behalf regarding any such Breach and the Seller shall not be
obligated to repurchase the affected Mortgage Loan on account of such Breach or
otherwise cure such Breach.
SECTION 4. Representations and Warranties of the Purchaser. In order
to induce CWCapital and the Seller to enter into this Agreement, the Purchaser
hereby represents and warrants for the benefit of CWCapital and the Seller as of
the date hereof that:
(a) The Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of North Carolina. 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.
(b) This Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the Purchaser's
directors and officers has been taken in connection therewith, and (assuming the
due authorization, execution and delivery hereof by the Seller and CWCapital)
this Agreement constitutes the valid, legal and binding obligation of the
Purchaser, enforceable against the Purchaser in accordance with its terms,
except as such enforcement may be limited by (A) laws relating to bankruptcy,
insolvency, reorganization, receivership or moratorium, (B) other laws relating
to or affecting the rights of creditors generally, or (C) general equity
principles (regardless of whether such enforcement is considered in a proceeding
in equity or at law).
(c) 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, under federal or state law, 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.
(d) 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
require 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 by-laws, (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 of any court or governmental
authority having jurisdiction over the Purchaser or its assets.
(e) 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
a sale of the Mortgage Loans to the Purchaser in exchange for consideration
consisting of a cash amount equal to the Aggregate Purchase Price.
(f) There is no action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser in any court
or by or before any other governmental agency or instrumentality which would
materially and adversely affect the validity of this Agreement or any action
taken in connection with the obligations of the Purchaser contemplated herein,
or which would be likely to impair materially the ability of the Purchaser to
enter into and/or perform its obligations under the terms of this Agreement.
(g) The Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any federal, state,
municipal or governmental agency or body, which default might have consequences
that would materially and adversely affect the condition (financial or other) or
operations of the Purchaser or its properties or might have consequences that
would materially and adversely affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage Loans
(the "Closing") shall be held at the offices of Cadwalader, Xxxxxxxxxx & Xxxx
LLP, Charlotte, North Carolina 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 and
CWCapital 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) The Pooling and Servicing Agreement (to the extent it affects
the obligations of the Seller and CWCapital hereunder) and all documents
specified in Section 6 of this Agreement (the "Closing Documents"), in such
forms as are agreed upon and acceptable to the Purchaser, the Seller, CWCapital,
the Underwriters, the Initial Purchaser and their respective counsel in their
reasonable discretion, shall be duly executed and delivered by all signatories
as required pursuant to the respective terms thereof;
(c) The Seller and/or CWCapital shall have delivered and released to
the Trustee (or a Custodian on its behalf) and the Master Servicer,
respectively, all documents represented to have been or required to be delivered
to the Trustee and the Master Servicer pursuant to Section 2 of this Agreement;
(d) 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 and CWCapital 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;
(e) The Seller and CWCapital, as applicable, have paid all fees and
expenses payable by it to the Purchaser or otherwise pursuant to this Agreement
as of the Closing Date; and
(f) The letters shall have been received from the independent
accounting firms KPMG LLP and Deloitte & Touche LLP, in form satisfactory to the
Purchaser, relating to certain information regarding the Mortgage Loans and
Certificates as set forth in the Prospectus, the Preliminary Prospectus
Supplement, the Prospectus Supplement, the Preliminary Memorandum and the
Memorandum.
Each party hereto agrees to use its best efforts to perform its
respective obligations hereunder in a manner that will enable the Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist of
the following:
(a) This Agreement duly executed by the Purchaser, the Seller and
CWCapital;
(b) A certificate of each of the Seller and CWCapital, executed by a
duly authorized officer of the Seller and CWCapital, respectively, dated the
Closing Date, and upon which the Purchaser, the Underwriters and the Initial
Purchaser may rely, to the effect that: (i) the representations and warranties
of the Seller and CWCapital in this Agreement are true and correct in all
material respects at and as of the Closing Date with the same effect as if made
on such date; and (ii) it 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;
(c) An officer's certificate from an officer of each of the Seller
and CWCapital (signed in his/her capacity as an officer), dated the Closing
Date, and upon which the Purchaser may rely, to the effect that each individual
who, as an officer or representative of the Seller and CWCapital, respectively,
signed this Agreement or any other document or certificate delivered on or
before the Closing Date in connection with the transactions contemplated herein,
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
and certificates are their genuine signatures;
(d) An officer's certificate from an officer of each of the Seller
and CWCapital (signed in his/her capacity as an officer), dated the Closing
Date, and upon which the Purchaser, the Underwriters and the Initial Purchaser
may rely, to the effect that with respect to it, the Mortgage Loans, the related
Mortgagors and the related Mortgaged Properties (i) such officer has carefully
examined the Specified Portions of the Preliminary Prospectus Supplement,
together with all other Time of Sale Information delivered prior to the Time of
Sale, and nothing has come to his attention that would lead him to believe that
the Specified Portions of the Preliminary Prospectus Supplement, together with
all other Time of Sale Information delivered prior to the Time of Sale, as of
the Time of Sale, or as of the Closing Date, included or include any untrue
statement of a material fact relating to the Mortgage Loans or omitted or omit
to state therein a material fact necessary in order to make the statements
therein relating to the Mortgage Loans, in light of the circumstances under
which they were made, not misleading, (ii) such officer has carefully examined
the Specified Portions of the Prospectus Supplement and nothing has come to his
attention that would lead him to believe that the Specified Portions of the
Prospectus Supplement, as of the date of the Prospectus Supplement, or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein relating to the Mortgage
Loans, in light of the circumstances under which they were made, not misleading,
(iii) such officer has examined the Specified Portions of the Memorandum and
nothing has come to his attention that would lead him to believe that the
Specified Portions of the Memorandum, as of the date thereof, or as of the
Closing Date, included or include any untrue statement of a material fact
relating to the Mortgage Loans or omitted or omit to state therein a material
fact necessary in order to make the statements therein related to the Mortgage
Loans, in the light of the circumstances under which they were made, not
misleading. The "Specified Portions" of the Preliminary Prospectus Supplement or
the Prospectus Supplement, as applicable, shall consist of Annex A thereto, the
diskette which accompanies the Prospectus Supplement (insofar as such diskette
is consistent with such Annex A) and the following sections of the Preliminary
Prospectus Supplement or the Prospectus Supplement, as applicable, (exclusive of
any statements in such sections that purport to summarize the servicing and
administration provisions of the Pooling and Servicing Agreement): "SUMMARY OF
PROSPECTUS SUPPLEMENT--The Parties--The Mortgage Loan Sellers", "SUMMARY OF
PROSPECTUS SUPPLEMENT--The Mortgage Loans", "RISK FACTORS--The Mortgage Loans",
and "DESCRIPTION OF THE MORTGAGE POOL--General", "--Mortgage Loan History",
"--Certain Terms and Conditions of the Mortgage Loans", "--Assessments of
Property Condition", "--Additional Mortgage Loan Information", "--The
Sponsors--CWCapital LLC", "--The Mortgage Loan Sellers" and "--Representations
and Warranties; Repurchases and Substitutions". The "Specified Portions" of the
Memorandum shall consist of the Specified Portions of the Prospectus Supplement
and the first and second full paragraphs on page "v" of the Memorandum.
(e) The certificate of formation and by-laws of the CWCapital and
the Seller, and an original or copy of a certificate of good standing of
CWCapital and the Seller issued by the Commonwealth of Massachusetts and the
State of Delaware, respectively, not earlier than sixty (60) days prior to the
Closing Date;
(f) A written opinion of counsel for the Seller (which opinion may
be from in-house counsel, outside counsel or a combination thereof), reasonably
satisfactory to the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and addressed to the Purchaser, the Trustee, the Underwriters, the
Initial Purchaser and each of the Rating Agencies, together with such other
written opinions as may be required by the Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser may reasonably request.
SECTION 7. Indemnification.
(a) CWCapital shall indemnify and hold harmless the Purchaser, the
Underwriters, the Initial Purchaser, their respective officers and directors,
and each person, if any, who controls the Purchaser, any Underwriter or the
Initial Purchaser within the meaning of either Section 15 of the Securities Act
of 1933, as amended (the "1933 Act") or Section 20 of the Securities Exchange
Act of 1934, as amended (the "1934 Act"), against any and all losses, expenses
(including the reasonable fees and expenses of legal counsel), claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the 1933 Act, the 1934 Act or other federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (i) arise out of or are
based upon a breach or violation of the representations made by the Seller and
CWCapital in Section 3(a)(ix) hereof, (ii) arise out of or are based upon a
breach or violation of the representations made by the Seller and CWCapital in
Section 3(a)(x) hereof, (iii) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in (A) the
Prospectus Supplement, the Preliminary Memorandum, the Memorandum, the Diskette
or in any revision or amendment of or supplement to any of the foregoing, (B)
any Time of Sale Information or any Issuer Information contained in any Free
Writing Prospectus prepared by or on behalf of the Underwriters (an "Underwriter
Free Writing Prospectus") or contained in any Free Writing Prospectus which is
required to be filed in accordance with the terms of the Underwriting Agreement,
(C) any items similar to Free Writing Prospectuses forwarded by the Seller or
CWCapital to the Initial Purchaser, or in any revision or amendment of or
supplement to any of the foregoing or (D) the summaries, reports, documents and
other written and computer materials and all other information regarding the
Mortgage Loans or the Seller or CWCapital furnished by the Seller or CWCapital
for review by prospective investors (the items in (A), (B), (C) and (D) above
being defined as the "Disclosure Material"), or (iv) arise out of or are based
upon the omission or alleged omission to state therein (in the case of any Free
Writing Prospectus, when read in conjunction with the other Time of Sale
Information, and in the case of any items similar to Free Writing Prospectuses,
when read in conjunction with the Memorandum) and in the case of any summaries,
reports, documents, written or computer materials, or other information
contemplated in clause (D) above, when read in conjunction with the Memorandum
and in the case of any Free Writing Prospectus, when read in conjunction with
the other Time of Sale Information) a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; but, with respect to
any Disclosure Material described in clauses (A), (B) and (C) of the definition
thereof, only if and to the extent that (I) any such untrue statement or alleged
untrue statement or omission or alleged omission occurring in, or with respect
to, such Disclosure Material, arises out of or is based upon an untrue statement
or omission with respect to the Mortgage Loans, the related Mortgagors and/or
the related Mortgaged Properties contained in the Data File (it being herein
acknowledged that the Data File was and will be used to prepare the Prospectus
Supplement and the Preliminary Prospectus Supplement, including without
limitation Annex A thereto, any other Time of Sale Information, the Preliminary
Memorandum, the Memorandum and the Diskette with respect to the Registered
Certificates and any items similar to Free Writing Prospectuses forwarded to
prospective investors in the Non-Registered Certificates and any Free Writing
Prospectus), (II) any such untrue statement or alleged untrue statement or
omission or alleged omission of a material fact occurring in, or with respect
to, such Disclosure Material, is with respect to, or arises out of or is based
upon an untrue statement or omission of a material fact with respect to, the
information regarding the Mortgage Loans, the related Mortgagors, the related
Mortgaged Properties and/or the Seller and/or CWCapital set forth in the
Specified Portions of the Preliminary Prospectus Supplement, the Prospectus
Supplement, the Preliminary Memorandum or the Memorandum, (III) any such untrue
statement or alleged untrue statement or omission or alleged omission occurring
in, or with respect to, such Disclosure Material, arises out of or is based upon
a breach of the representations and warranties of the Seller or CWCapital set
forth in or made pursuant to Section 3 hereof or (IV) any such untrue statement
or alleged untrue statement or omission or alleged omission occurring in, or
with respect to, such Disclosure Material, arises out of or is based upon any
other written information concerning the characteristics of the Mortgage Loans,
the related Mortgagors or the related Mortgaged Properties furnished to the
Purchaser, the Underwriters or the Initial Purchaser by CWCapital or the Seller;
provided that the indemnification provided by this Section 7 shall not apply to
the extent that such untrue statement or omission of a material fact was made as
a result of an error in the manipulation of, or in any calculations based upon,
or in any aggregation of the information regarding the Mortgage Loans, the
related Mortgagors and/or the related Mortgaged Properties set forth in the Data
File or Annex A to the Preliminary Prospectus Supplement or the Prospectus
Supplement to the extent such information was not materially incorrect in the
Data File or such Annex A, as applicable, including without limitation the
aggregation of such information with comparable information relating to the
Other Mortgage Loans. Notwithstanding the foregoing, the indemnification
provided in this Section 7(a) shall not inure to the benefit of any Underwriter
or the Initial Purchaser (or to the benefit of any person controlling such
Underwriter or the Initial Purchaser) from whom the person asserting claims
giving rise to any such losses, claims, damages, expenses or liabilities
purchased Certificates if (x) the subject untrue statement or omission or
alleged untrue statement or omission made in any Disclosure Material (exclusive
of the Prospectus or any corrected or amended Prospectus or the Memorandum or
any corrected or amended Memorandum) is eliminated or remedied in the Prospectus
or the Memorandum or, with respect to any Time of Sale Information only, by the
delivery of a Corrected Free Writing Prospectus prior to the Time of Sale (in
each case, as corrected or amended, if applicable), as applicable, and (y) a
copy of the Prospectus, Memorandum or Corrected Free Writing Prospectus (in each
case, as corrected or amended, if applicable), as applicable, shall not have
been sent to such person at or prior to the Time of Sale of such Certificates
and (z) in the case of a corrected or amended Prospectus, Memorandum or
Corrected Free Writing Prospectus, such Underwriter or Initial Purchaser
received electronically or in writing notice of such untrue statement or
omission and updated information concerning the untrue statement or omission at
least one Business Day prior to the Time of Sale. CWCapital shall, subject to
clause (c) below, reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action.
(b) For purposes of this Agreement, "Registration Statement" shall
mean such registration statement No. 333-131262 filed by the Purchaser on Form
S-3, including without limitation exhibits thereto and information incorporated
therein by reference; "Base Prospectus" shall mean the prospectus, dated May 18,
2006, as supplemented by the prospectus supplement, dated May 18, 2006 (the
"Prospectus Supplement" and, together with the Base Prospectus, the
"Prospectus") relating to the Registered Certificates, including all annexes
thereto; "Preliminary Prospectus Supplement" shall mean the free writing
prospectus, dated May 7, 2006, consisting of the preliminary free writing
prospectus, including the base prospectus, dated March 21, 2006 attached
thereto, as supplemented and corrected by that certain free writing prospectus,
dated May 16, 2006; "Preliminary Memorandum" shall mean the preliminary private
placement memorandum, dated May 16, 2006, relating to the Non-Registered
Certificates, including all annexes thereto; "Memorandum" shall mean the private
placement memorandum, dated May 18, 2006, relating to the Non-Registered
Certificates, including all exhibits thereto; "Registered Certificates" shall
mean the Class A-1, Class A-2, Class A-3, Class A-PB1, Class A-PB2, Class A-4,
Class A-5, Class A-1A, Class A-M, Class A-J, Class B, Class C, Class D, Class E
and Class F Certificates; "Non-Registered Certificates" shall mean the
Certificates other than the Registered Certificates; "Diskette" shall mean the
diskette or compact disc attached to each of the Preliminary Prospectus
Supplement, the Prospectus and the Memorandum; and "Data File" shall mean the
compilation of information and data regarding the Mortgage Loans covered by the
Agreed Upon Procedures Letters, dated May 31, 2006 and rendered by KPMG LLP (a
"hard copy" of which Data File was initialed on behalf of the Seller and the
Purchaser). "Free Writing Prospectus" shall mean a "free writing prospectus" as
such term is defined pursuant to Rule 405 under the 1933 Act. "Corrected Free
Writing Prospectus" shall mean a Free Writing Prospectus that corrects any
previous Free Writing Prospectus prepared by or on behalf of any Underwriter and
delivered to any purchaser that contained any untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements contained therein, in light of the circumstances in which they were
made, not misleading. "Time of Sale" shall mean the time at which sales to
investors of the Certificates were first made as determined in accordance with
Rule 159 of the 1933 Act. "Time of Sale Information" shall mean each free
writing prospectus listed on Exhibit B hereto. "Issuer Information" shall have
the meaning given to such term in Rule 433(h) under the 1933 Act (as discussed
by the Securities and Exchange Commission (the "Commission") in footnote 271 of
the Commission's Securities Offering Reform Release No. 33--8591). "Regulation
AB" shall have the meaning as defined in Subpart 229.1100 - Asset Backed
Securities (Regulation AB), 17 C.F.R. ss.ss.229.1100-229.1123 of the 1933 Act,
as such may be amended from time to time, and subject to such clarification and
interpretation as have been provided by the Commission in the adopting release
(Asset-Backed Securities, Securities Act Release No. 33-8518, 70 Fed. Reg.
1,506, 1,531 (Jan. 7, 2005)) or by the staff of the Commission, or as may be
provided by the Commission or its staff from time to time.
(c) As promptly as reasonably practicable after receipt by any
person entitled to indemnification under this Section 7 (an "indemnified party")
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against CWCapital (the "indemnifying
party") under this Section 7, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability that it may have to any indemnified party
under Section 7(a) (except to the extent that such omission has prejudiced the
indemnifying party in any material respect) or from any liability which it may
have otherwise than under this Section 7. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof, with counsel selected by the
indemnifying party and reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party or
parties shall have reasonably concluded that there may be legal defenses
available to it or them and/or other indemnified parties that are different from
or additional to those available to the indemnifying party, the indemnified
party shall have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party
will not be liable for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof, unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Purchaser, the Underwriters and the Initial Purchaser, representing all the
indemnified parties under Section 7(a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or (iii) is
applicable, such liability shall only be in respect of the counsel referred to
in such clause (i) or (iii). Unless it shall assume the defense of any
proceeding, an indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but, if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party shall indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel or any other expenses for which the indemnifying party is obligated
under this subsection, the indemnifying party agrees that it shall be liable for
any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than forty-five (45) days after receipt by
such indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement. If an indemnifying party assumes
the defense of any proceeding, it shall be entitled to settle such proceeding
with the consent of the indemnified party or, if such settlement provides for an
unconditional release of the indemnified party in connection with all matters
relating to the proceeding that have been asserted against the indemnified party
in such proceeding by the other parties to such settlement, which release does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party without the consent of the
indemnified party.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party under Section 7(a) hereof or insufficient in
respect of any losses, claims, damages or liabilities referred to therein, then
the indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnified and indemnifying
parties in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations (taking into account the parties' relative knowledge and access
to information concerning the matter with respect to which the claim was
asserted, the opportunity to correct and prevent any statement or omission or
failure to comply, and any other equitable considerations appropriate under the
circumstances). The relative fault of the indemnified and indemnifying parties
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by such parties;
provided that no Underwriter or Initial Purchaser shall be obligated to
contribute more than its share of underwriting discounts and commissions and
other fees pertaining to the Certificates, less any damages otherwise paid by
such Underwriter or Initial Purchaser with respect to such loss, liability,
claim, damage or expense. It is hereby acknowledged that the respective
Underwriters' and Initial Purchaser's obligations under this Section 7 shall be
several and not joint. For purposes of this Section, each person, if any, who
controls an Underwriter or the Initial Purchaser within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, and such Underwriter's or
Initial Purchaser's officers and directors, shall have the same rights to
contribution as such Underwriter or Initial Purchaser, as the case may be, and
each director of CWCapital and each person, if any who controls CWCapital within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as CWCapital.
(e) The Purchaser and CWCapital agree that it would not be just and
equitable if contribution pursuant to Section 7(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the considerations referred to in Section 7(d) above. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages and
liabilities referred to in this Section 7 shall be deemed to include, subject to
the limitations set forth above, any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim, except where the indemnified party is required to bear such
expenses pursuant to this Section 7, which expenses the indemnifying party shall
pay as and when incurred, at the request of the indemnified party, to the extent
that the indemnifying party will be ultimately obligated to pay such expenses.
If any expenses so paid by the indemnifying party are subsequently determined to
not be required to be borne by the indemnifying party hereunder, the party that
received such payment shall promptly refund the amount so paid to the party
which made such payment. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) The indemnity and contribution agreements contained in this
Section 7 shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by the Purchaser,
the Underwriters, the Initial Purchaser, any of their respective directors or
officers, or any person controlling the Purchaser, the Underwriters or the
Initial Purchaser and (iii) acceptance of and payment for any of the
Certificates.
(g) Without limiting the generality or applicability of any other
provision of this Agreement, the Underwriters, the Initial Purchaser and their
directors, officers and controlling parties shall be third-party beneficiaries
of the provisions of this Section 7.
SECTION 8. Costs. The Seller shall pay (or shall reimburse the
Purchaser to the extent that the Purchaser has paid) the Seller's pro rata
portion of the aggregate of the following amounts (the Seller's pro rata portion
to be determined according to the percentage that the CWCMSI Mortgage Loan
Balance represents as of the Cut-Off Date Pool Balance): (i) the costs and
expenses of printing and delivering the Pooling and Servicing Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise reproducing)
and delivering a final Prospectus, Term Sheet, Preliminary Prospectus
Supplement, each other Free Writing Prospectus, Preliminary Memorandum and
Memorandum relating to the Certificates; (iii) the initial fees, costs, and
expenses of the Trustee (including reasonable attorneys' fees); (iv) the filing
fee charged by the Commission for registration of the Certificates so
registered; (v) the fees charged by the Rating Agencies to rate the Certificates
so rated; (vi) the fees and disbursements of a firm of certified public
accountants selected by the Purchaser and the Seller with respect to numerical
information in respect of the Mortgage Loans and the Certificates included in
any Free Writing Prospectus, the Prospectus Supplement, the Preliminary
Memorandum and the Memorandum, including in respect of the cost of obtaining any
"comfort letters" with respect to such items; (vii) the reasonable out-of-pocket
costs and expenses in connection with the qualification or exemption of the
Certificates under state securities or "Blue Sky" laws, including filing fees
and reasonable fees and disbursements of counsel in connection therewith, in
connection with the preparation of any "Blue Sky" survey and in connection with
any determination of the eligibility of the Certificates for investment by
institutional investors and the preparation of any legal investment survey;
(viii) the expenses of printing any such "Blue Sky" survey and legal investment
survey; and (ix) the reasonable fees and disbursements of counsel to the
Underwriters or the Initial Purchaser; provided, however, the Seller shall pay
(or shall reimburse the Purchaser to the extent that the Purchaser has paid) the
expense of recording any assignment of Mortgage or assignment of Assignment of
Leases as contemplated by Section 2 hereof with respect to the Mortgage Loans.
All other costs and expenses in connection with the transactions contemplated
hereunder shall be borne by the party incurring such expense.
SECTION 9. Grant of a Security Interest. It is the express intent of
the parties hereto 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,
(a) it is the express intent of the parties that such conveyance be deemed a
pledge of the Mortgage Loans by the Seller to the Purchaser to secure a debt or
other obligation of the Seller, and (b) (i) this Agreement shall also be deemed
to be a security agreement within the meaning of Article 9 of the Uniform
Commercial Code of the applicable jurisdiction; (ii) 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, including, without limitation, all amounts, other than
investment earnings, from time to time held or invested in the Certificate
Account, the Distribution Account or, if established, the REO Account (each as
defined in the Pooling and Servicing Agreement) whether in the form of cash,
instruments, securities or other property; (iii) the assignment to the Trustee
of the interest of the Purchaser as contemplated by Section 1 hereof shall be
deemed to be an assignment of any security interest created hereunder; (iv) the
possession by the Trustee or any of its agents, including, without limitation,
the Custodian, of the Mortgage Notes, 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 Uniform Commercial Code of
the applicable jurisdiction; and (v) notifications to persons (other than the
Trustee) holding such property, and acknowledgments, receipts or confirmations
from persons (other than the Trustee) 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. Covenants of Purchaser. The Purchaser shall provide the
Seller and CWCapital with all forms of Disclosure Materials (including the
Preliminary Prospectus Supplement, the final form of the Memorandum and the
final form of the Prospectus Supplement) promptly upon any such document
becoming available.
SECTION 11. 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 12. 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 CWCapital or 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).
SECTION 13. 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 14. 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 15. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS, DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES. THE PARTIES HERETO INTEND THAT THE PROVISIONS OF
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW SHALL APPLY TO THIS
AGREEMENT.
SECTION 16. Attorneys Fees. If any legal action, suit or proceeding
is commenced between the Seller and the Purchaser or between CWCapital and the
Purchaser regarding their respective rights and obligations under this
Agreement, the prevailing party shall be entitled to recover, in addition to
damages or other relief, costs and expenses, attorneys' fees and court costs
(including, without limitation, expert witness fees). As used herein, the term
"prevailing party" shall mean the party which obtains the principal relief it
has sought, whether by compromise settlement or judgment. If the party which
commenced or instituted the action, suit or proceeding shall dismiss or
discontinue it without the concurrence of the other party, such other party
shall be deemed the prevailing party.
SECTION 17. Further Assurances. The Seller, CWCapital 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 18. Successors and Assigns. The rights and obligations of
the Seller and CWCapital under this Agreement shall not be assigned by CWCapital
or the Seller without the prior written consent of the Purchaser, except that
any person into which CWCapital or the Seller may be merged or consolidated, or
any corporation resulting from any merger, conversion or consolidation to which
CWCapital or the Seller is a party, or any person succeeding to all or
substantially all of the business of CWCapital or the Seller, shall be the
successor to CWCapital or 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 CWCapital or the
Seller, the Purchaser, the Underwriters and the Initial Purchaser (each as
intended third party beneficiaries hereof) and their permitted successors and
assigns, and the officers, directors and controlling persons referred to in
Section 7. This Agreement is enforceable by the Underwriters, the Initial
Purchaser and the other third party beneficiaries hereto in all respects to the
same extent as if they had been signatories hereof.
SECTION 19. 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, or third party beneficiary,
against whom such waiver or modification is sought to be enforced. No amendment
to the Pooling and Servicing Agreement which relates to defined terms contained
therein, Section 2.01(d) thereof or the repurchase obligations or any other
obligations of CWCapital or the Seller shall be effective against CWCapital or
the Seller (in such capacity) unless CWCapital or the Seller, as applicable,
shall have agreed to such amendment in writing.
SECTION 20. Accountants' Letters. The parties hereto shall cooperate
with KPMG LLP and Deloitte & Touche LLP in making available all information and
taking all steps reasonably necessary to permit such accountants to deliver the
letters required by the Underwriting Agreement.
IN WITNESS WHEREOF, the Seller, CWCapital and the Purchaser have
each caused their names to be signed hereto by their respective duly authorized
officers as of the date first above written.
ADDITIONAL PARTY
CWCAPITAL LLC
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Senior Vice President
Assistant General Counsel
Address for Notices:
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
with a copy to Xxxx Xxxxxxx, Esq.
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
and with a copy to Xxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
SELLER
CWCAPITAL MORTGAGE SECURITIES I LLC
By: /s/ Xxxx X. Xxxxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Senior Vice President
Assistant General Counsel
Address for Notices:
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to Xxxx Xxxxxxx, Esq.
One Xxxxxxx River Place
00 Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
and with a copy to Xxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
PURCHASER
WACHOVIA COMMERCIAL MORTGAGE
SECURITIES, INC.
By: /s/ X. Xxxxx Xxxx, Jr.
--------------------------------------
Name: X. Xxxxx Xxxx, Jr.
Title: Vice President
Address for Notices:
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
EXHIBIT A
Mortgage Loan Schedule
Mortgage
Loan Loan Group
Number Number Property Name Address City
-------- ---------- ------------------------------------------------ -------------------------------------- ----------------
52 0 XXX Xxxxxxxx(0) 0000 Xxxx Xxxxxxxx Xxxxx Xxxxxx Xxxxx
70 1 Hampton Inn Bowie 00000 Xxxxx Xxxxxxxx Xxxxxxxxx Bowie
79 1 Westchase I and II 9700 Richmond, 0000 Xxxxx Xxxxxxx Xxxx Xxxxxxx
96 1 Sunrise Plaza(2) 000-000 X Xxxxxx X Lancaster
100 1 Esquire Building 6710 Xxxxxxx Road Richmond Heights
104 0 Xxxxxxxxxx Xxxxxxx 0000 Xxxxx Xxxxx Connector SW Atlanta
116 1 Sterling Plaza II 22405 Enterprise Street Sterling
117 1 Conn's - Goodwill Shopping Center 0000 XX Xxxxxxxx Xxxxx Xxx Xxxxxxx
000 0 Xxxx Xxxxxxx MHC(3) 0000 Xxxx Xxxxxx X Xxxxxxxxx
000 0 Xxxxxxxxx Xxxxxxx Manufactured Housing Community 0000 Xxxx XxxXxxxxx Xxxx Xxxxxxx
136 1 Ballantyne Shopping Center 00000 Xxxxxx Xxxxxx Xxxxxxxxx
Mortgage
Loan Cut-Off Date Monthly P&I Mortgage Number of Unit of
Number State Zip Code County Loan Balance ($) Payments ($) Grace Days Rate (%) Units Measure
-------- ----- -------- --------------- ---------------- ------------ ---------- ---------- --------- -------
52 XX 00000 Oakland 14,062,394.18 Steps 8.2000% 210,000 Sq. Ft.
70 MD 20716 Prince George's 10,450,352.15 65,612.74 5 5.6800% 000 Xxxxx
00 XX 00000 Xxxxxx 8,950,000.00 51,634.32 5 5.6450% 154,426 Sq. Ft.
96 CA 93534 Los Angeles 6,150,000.00 39,094.90 5 6.5550% 48,800 Sq. Ft.
100 MO 63117 St. Louis 5,840,000.00 33,973.61 5 5.7230% 54,433 Sq. Ft.
000 XX 00000 Xxxxxx 5,090,343.42 30,064.20 5.8430% 174 Xxxxx
000 XX 00000 Loudoun 4,295,398.68 24,739.65 5 5.6200% 22,474 Sq. Ft.
117 TX 78224 Bexar 4,250,000.00 24,901.83 5 5.7870% 50,560 Sq. Ft.
122 CA 93535 Los Angeles 3,900,000.00 26,180.97 5 6.4375% 000 Xxxx
000 XX 00000 Sedgwick 3,649,514.19 22,936.91 5 5.7100% 000 Xxxx
000 XX 00000 Mecklenburg 3,090,087.48 18,488.52 5.9510% 10,000 Sq. Ft.
Mortgage Original Term Remaining Term Maturity Original Remaining Master Anticipated
Loan to Maturity to Maturity Date Amort Amort Ground Servicing Repayment
Number or ARD (Mos.) or ARD (Mos.) or ARD Term (Mos.) Term (Mos.) Lease Fee Rate ARD Loan Date
-------- ------------- -------------- -------- ----------- ----------- --------- --------- -------- -----------
52 119 68 01/01/12 Varies Varies Fee 0.04000% N
70 60 57 02/01/11 300 297 Fee 0.04000% N
79 120 117 02/01/16 360 360 Fee 0.06000% Y 2/1/2016
96 120 120 05/01/16 360 360 Fee 0.06000% N
100 120 118 03/01/16 360 360 Fee 0.06000% Y 3/1/2016
104 60 58 03/01/11 360 358 Fee 0.06000% N
116 120 119 04/01/16 360 359 Fee 0.06000% N
117 120 119 04/01/16 360 360 Fee 0.06000% Y 4/1/2016
122 120 120 06/01/16 300 300 Fee 0.06000% Y 6/1/2016
128 120 118 03/01/16 300 298 Fee 0.06000% Y 3/1/2016
136 240 237 02/01/26 360 357 Fee 0.06000% N
Mortgage
Loan Loan
Number Additional Interest Rate Originator
-------- ---------------------------------------------------------------------------------------------------------- ----------
52 CWCapital LLC
70 CWCapital LLC
79 Greater of interest rate plus 3.0% or the applicable Treasury Rate plus 3.0% CWCapital LLC
96 CWCapital LLC
100 Greater of interest rate plus 3.0% or the applicable Treasury Rate plus 3.0% CWCapital LLC
104 CWCapital LLC
116 CWCapital LLC
117 3.0% plus the greater of (i) the initial note interest rate or (ii) the then current 10-year Treasury rate CWCapital LLC
122 3.0% plus the greater of (i) the initial note interest rate or (ii) the then current 10-year Treasury rate CWCapital LLC
128 3.0% plus the greater of (i) the initial note interest rate or (ii) the then current 10-year Treasury rate CWCapital LLC
136 CWCapital LLC
Mortgage Cross Collateralized Interest
Loan Environmental and Cross Prepayment Early Accrual
Number Insurance Defaulted Loan Flag Provisions Defeasance Secured by LC Method Lockbox
-------- ------------- ------------------------ ---------- ---------- ------------- ------------- ---------
52 N N N Actual/Actual
70 N Y N N Actual/360 Day 1
79 N Y N N Actual/360 Day 1
96 N Y N N Actual/360
100 N Y N N Actual/360 Day 1
104 N Y N N Actual/360
116 N Y N N Actual/360 Springing
117 N Y N N Actual/360 Day 1
122 N Y N N Actual/360 Day 1
128 N Y N N Actual/360 Day 1
136 N Y N N Actual/360
Mortgage Initial Deposit Initial Ongoing
Loan Annual Deposit to to Capital TI/LC TI/LC
Number Replacement Reserves Improvements Reserve Escrow Footnote
-------- -------------------- -------------------- --------- --------
52
70 131,754 17,625
79 38,604 10,000 650,000 (2)
96 18,060 37,125 2,870 (2)
100 11,040 11,875 6,193 (2)
104 53,592 21,250
116 3,372 1,533 (2)
117 7,584 15,200 75,000 (2)
122 11,016 31,438
128
136 1,800 986 (2)
(1) With respect to 1 Mortgage Loan, representing 0.5% pf the Cut-Off Date Pool
Balance (0.6% of the Cut-Off Group 1 Balance), such ratio was calculated based
upon the current scheduled debt serviced of $117,777 due under the related note.
Commencing with the payment due in March 2007, such payment will step to
$132,609 through and including the Maturity Date.
(2) An upfront escrow in the amount of $715,000 may be used to pay down the
principal balance of the mortgage loan in the event that the related Mortgaged
Property has not met certain occupancy and financial thresholds within 12 months
of the origination date (in which event, the amortization schedule will be
recast based upon the principal balance of the Mortgage Loan following such
prepayment and the monthly debt service payments on the Mortgage Loan will be
adjusted).
(3) A monthly escrow was required at origination whereby all excess cash flow is
required to be held by the mortgagee. If the borrower fails to achieve a DSC
Ratio of at least 1.20x by June 1, 2008, the lender is required to use all or a
portion of the escrowed funds in an amount sufficient to pay down the principal
balance of the Mortgage Loan, together with a 6.5% Prepayment Premium, so as to
achieve a DSC Ratio of 1.20x. The borrower is obligated to deliver additional
funds to the mortgagee to the extent of any deficiency in the escrowed funds.
EXHIBIT B
Free Writing Prospectuses
1. Free Writing Prospectus, dated May 7, 2006
2. Free Writing Prospectus, dated May 7, 2006
3. Free Writing Prospectus, dated May 16, 2006
SCHEDULE I
General Mortgage Representations and Warranties
For purposes of this Schedule I, 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 or any
servicer acting on its behalf regarding the matters referred to, in each case:
(i) at the time of the Seller's origination or acquisition of the particular
Mortgage Loan, after the Seller having conducted such inquiry and due diligence
into such matters as would be customarily performed by a prudent institutional
commercial or multifamily, as applicable, mortgage lender; and (ii) subsequent
to such origination, the Seller having utilized monitoring practices that would
be utilized by a prudent commercial or multifamily, as applicable, mortgage
lender and having made prudent inquiry as to the knowledge of the servicer
servicing such Mortgage Loan on its behalf. 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 or any
servicer acting on its behalf without any express or implied obligation to make
inquiry. All information contained in documents which are part of or required to
be part of a Mortgage File shall be deemed to be within the knowledge and the
actual knowledge of the Seller. Wherever there is a reference to receipt by, or
possession of, the Seller of any information or documents, or to any action
taken by the Seller or not taken by the Seller, such reference shall include the
receipt or possession of such information or documents by, or the taking of such
action or the failure to take such action by, the Seller or any servicer acting
on its behalf.
1. The information pertaining to each Mortgage Loan set forth in the Mortgage
Loan Schedule was true and correct in all material respects as of the
Cut-Off Date and included all of the material information required by the
definition of Mortgage Loan Schedule.
2. As of the date of its origination, such Mortgage Loan complied in all
material respects with, or was exempt from, all requirements of federal,
state or local law relating to the origination of such Mortgage Loan.
3. Immediately prior to the sale, transfer and assignment to the Purchaser,
the Seller had good and marketable title to, and was the sole owner of,
each Mortgage Loan, and the Seller is transferring such Mortgage Loan free
and clear of any and all liens, pledges, charges, security interests or
any other ownership interests of any nature encumbering such Mortgage
Loan. Upon consummation of the transactions contemplated by this
Agreement, the Seller will have validly and effectively conveyed to the
Purchaser all legal and beneficial interest in and to such Mortgage Loan
(other than those rights to servicing and related compensation as
reflected in the Mortgage Loan Schedule) free and clear of any pledge,
lien or security interest.
4. The proceeds of such Mortgage Loan have been fully disbursed and there is
no requirement for future advances thereunder.
5. Each related Mortgage Note, Mortgage, Assignment of Leases (if a document
separate from the Mortgage) and other agreement executed by the related
Mortgagor in connection with such Mortgage Loan is a legal, valid and
binding obligation of the related Mortgagor (subject to any non-recourse
provisions therein and any state anti-deficiency or market value limit
deficiency legislation), enforceable in accordance with its terms, except
(i) that certain provisions contained in such Mortgage Loan documents are
or may be unenforceable in whole or in part under applicable state or
federal laws, but neither the application of any such laws to any such
provision nor the inclusion of any such provisions renders any of the
Mortgage Loan documents invalid as a whole and such Mortgage Loan
documents taken as a whole are enforceable to the extent necessary and
customary for the practical realization of the rights and benefits
afforded thereby and (ii) as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditors' rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). The related Mortgage Note and Mortgage contain no
provision limiting the right or ability of the Seller to assign, transfer
and convey the related Mortgage Loan to any other Person. With respect to
any Mortgaged Property that has tenants, there exists as either part of
the Mortgage or as a separate document, an Assignment of Leases.
6. As of the date of its origination, there was no valid offset, defense,
counterclaim, abatement or right to rescission with respect to any of the
related Mortgage Notes, Mortgage(s) or other agreements executed in
connection therewith, and, as of the Cut-Off Date, there is no valid
offset, defense, counterclaim or right to rescission with respect to such
Mortgage Note, Mortgage(s) or other agreements, except in each case, with
respect to the enforceability of any provisions requiring the payment of
default interest, late fees, additional interest, Prepayment Premiums or
Yield Maintenance Charges, and the Seller has no knowledge of such rights,
defenses or counterclaims having been asserted.
7. Each related assignment of Mortgage and assignment of Assignment of Leases
from the Seller to the Trustee constitutes the legal, valid and binding
first priority assignment from the Seller, except as such enforcement may
be limited by bankruptcy, insolvency, redemption, reorganization,
liquidation, receivership, moratorium or other laws relating to or
affecting creditors' rights generally or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Each Mortgage and Assignment of Leases is freely
assignable.
8. Each related Mortgage is a valid and enforceable first lien on the related
Mortgaged Property, subject only to the exceptions set forth in paragraph
(5) above and the following title exceptions (each such title exception, a
"Title Exception" and collectively, the "Title Exceptions"): (a) the lien
of current real property taxes, water charges, sewer rents and assessments
not yet due and payable, (b) covenants, conditions and restrictions,
rights of way, easements and other matters of public record, none of
which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (c)
the exceptions (general and specific) and exclusions set forth in the
applicable policy described in paragraph (12) below or appearing of
record, none of which, individually or in the aggregate, materially and
adversely interferes with the current use of the Mortgaged Property or the
security intended to be provided by such Mortgage or with the Mortgagor's
ability to pay its obligations under the Mortgage Loan when they become
due or materially and adversely affects the value of the Mortgaged
Property, (d) other matters to which like properties are commonly subject,
none of which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property, (e)
the right of tenants (whether under ground leases, space leases or
operating leases) at the Mortgaged Property to remain following a
foreclosure or similar proceeding (provided that such tenants are
performing under such leases) and (f) if such Mortgage Loan is a Crossed
Loan, the lien of the Mortgage for such other Mortgage Loan, none of
which, individually or in the aggregate, materially and adversely
interferes with the current use of the Mortgaged Property or the security
intended to be provided by such Mortgage or with the Mortgagor's ability
to pay its obligations under the Mortgage Loan when they become due or
materially and adversely affects the value of the Mortgaged Property.
Except with respect to Crossed Loans and as provided below, there are no
mortgage loans that are senior or pari passu with respect to the related
Mortgaged Property or such Mortgage Loan.
9. UCC Financing Statements have been filed and/or recorded (or, if not filed
and/or recorded, have been submitted in proper form for filing and
recording), in all public places necessary to perfect a valid security
interest in all items of personal property located on the Mortgaged
Property that are owned by the Mortgagor and either (i) are reasonably
necessary to operate the Mortgaged Property or (ii) are (as indicated in
the appraisal obtained in connection with the origination of the related
Mortgage Loan) material to the value of the Mortgaged Property (other than
any personal property subject to a purchase money security interest or a
sale and leaseback financing arrangement permitted under the terms of such
Mortgage Loan or any other personal property leases applicable to such
personal property), to the extent perfection may be effected pursuant to
applicable law by recording or filing, and the Mortgages, security
agreements, chattel Mortgages or equivalent documents related to and
delivered in connection with the related Mortgage Loan establish and
create a valid and enforceable lien and priority security interest on such
items of personalty except as such enforcement may be limited by
bankruptcy, insolvency, receivership, reorganization, moratorium,
redemption, liquidation or other laws affecting the enforcement of
creditor's rights generally, or by general principles of equity
(regardless of whether such enforcement is considered in a proceeding in
equity or at law). Notwithstanding any of 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 UCC Financing Statements are required
in order to effect such perfection.
10. All real estate taxes and governmental assessments, or installments
thereof, which would be a lien on the Mortgaged Property and that, prior
to the Cut-Off Date, have become delinquent in respect of each related
Mortgaged Property have been paid, or an escrow of funds in an amount
sufficient to cover such payments has been established. For purposes of
this representation and warranty, real estate taxes and governmental
assessments and installments thereof shall not be considered delinquent
until the earlier of (a) the date on which interest and/or penalties would
first be payable thereon and (b) the date on which enforcement action is
entitled to be taken by the related taxing authority.
11. In the case of each Mortgage Loan, one or more engineering assessments
were performed and prepared by an independent engineering consultant firm,
which visited the related Mortgaged Property not more than 12 months prior
to the origination date of the related Mortgage Loan, and, except as set
forth in an engineering report prepared in connection with such
assessment, a copy of which has been delivered to the Purchaser or its
designee, the related Mortgaged Property is, to the Seller's knowledge,
relying solely on the review of such engineering assessment(s), in good
repair, free and clear of any damage that would materially and adversely
affect its value as security for such Mortgage Loan. If an engineering
report revealed any such damage or deficiencies, material deferred
maintenance or other similar conditions as described in the preceding
sentence either (1) an escrow of funds equal to at least 125% of the
amount estimated to effect the necessary repairs, or such other amount as
a prudent commercial mortgage lender would deem appropriate under the
circumstances was required or a letter of credit in such amount was
obtained or (2) such repairs and maintenance have been completed. As of
the date of origination of such Mortgage Loan, there was no proceeding
pending, and subsequent to such date, the Seller has not received notice
of any pending or threatening proceeding for the condemnation of all or
any material portion of the Mortgaged Property securing any Mortgage Loan.
12. The Seller has received an ALTA lender's title insurance policy or a
comparable form of lender's title insurance policy (or if such policy has
not yet been issued, such insurance may be evidenced by escrow
instructions, a "marked up" pro forma or specimen policy or title
commitment, in either case, marked as binding and countersigned by the
title insurer or its authorized agent at the closing of the related
Mortgage Loan) as adopted in the applicable jurisdiction (the "Title
Insurance Policy"), which to the Seller's knowledge, was issued by a title
insurance company qualified to do business in the jurisdiction where the
applicable Mortgaged Property is located to the extent required, insuring
that the related Mortgage is a valid first lien in the original principal
amount of the related Mortgage Loan on the Mortgagor's fee simple interest
(or, if applicable, leasehold interest) in the portion of the Mortgaged
Property comprised of real estate, subject only to the Title Exceptions.
Such Title Insurance Policy was issued in connection with the origination
of the related Mortgage Loan. No claims have been made under such Title
Insurance Policy. Such Title Insurance Policy is in full force and effect,
provides that the originator of the related Mortgage Loan, its successors
or assigns is the sole named insured, and all premiums thereon have been
paid. The Seller has not done, by act or omission, and the Seller has no
knowledge of, anything that would impair the coverage under such Title
Insurance Policy. Immediately following the transfer and assignment of the
related Mortgage Loan to the Purchaser (including endorsement and delivery
of the related Mortgage Note to the Purchaser and recording of the related
Assignment of Mortgage in favor of Purchaser in the applicable real estate
records), such Title Insurance Policy will inure to the benefit of the
Purchaser without the consent of or notice to the title insurer. Such
Title Insurance Policy contains no material exclusions for, or
affirmatively insures against any losses arising from (other than in
jurisdictions in which affirmative insurance is unavailable) (a) access to
public roads, (b) that there are no material encroachments of any part of
the building thereon over easements and (c) that the land shown on the
survey is the same as the property legally described in the Mortgage.
13. Each Mortgaged Property was covered by (1) a fire and extended perils
included within the classification "All Risk of Physical Loss" insurance
policy in an amount (subject to a customary deductible) at least equal to
the lesser of the replacement cost of improvements located on such
Mortgaged Property, with no deduction for depreciation, or the outstanding
principal balance of the Mortgage Loan and in any event, the amount
necessary to avoid the operation of any co-insurance provisions; (2)
business interruption or rental loss insurance in an amount at least equal
to 12 months of operations of the related Mortgaged Property; and (3)
comprehensive general liability insurance against claims for personal and
bodily injury, death or property damage occurring on, in or about the
related Mortgaged Property in an amount customarily required by prudent
commercial mortgage lenders, but not less than $1 million. 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 the resulting report concluded that the PML would
exceed 20% of the amount of the replacement costs of the improvements,
earthquake insurance on such Mortgaged Property was obtained 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. 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, such
Mortgaged Property is insured by 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. Such insurance is required by the Mortgage or related Mortgage
Loan documents and was in full force and effect with respect to each
related Mortgaged Property at origination and to the knowledge of the
Seller, all insurance coverage required under each Mortgage or related
Mortgage Loan documents is in full force and effect with respect to each
related Mortgaged Property; and no notice of termination or cancellation
with respect to any such insurance policy has been received by the Seller;
and except for certain amounts not greater than amounts which would be
considered prudent by a commercial mortgage lender with respect to a
similar mortgage loan and which are set forth in the related Mortgage or
related Mortgage Loan documents, any insurance proceeds in respect of a
casualty loss will be applied either to (1) the repair or restoration of
the related Mortgaged Property with mortgagee or a third party custodian
acceptable to the mortgagee having the right to hold and disburse the
proceeds as the repair or restoration progresses, other than with respect
to amounts that are customarily acceptable to commercial and multifamily
mortgage lending institutions, or (2) the reduction of the outstanding
principal balance of the Mortgage Loan and accrued interest thereon. To
the Seller's actual knowledge, the insurer with respect to each policy is
qualified to write insurance in the relevant jurisdiction to the extent
required. The insurance policies contain a standard mortgagee clause
naming the originator of the related Mortgage Loan, its successors and
assigns as loss payees in the case of property insurance policies and
additional insureds in the case of liability insurance policies and
provide that they are not terminable and may not be reduced without thirty
(30) days prior written notice to the mortgagee (or, with respect to
non-payment of premiums, ten (10) days prior written notice to the
mortgagee) or such lesser period as prescribed by applicable law. Each
Mortgage or related Mortgage Loan documents require that the Mortgagor
maintain insurance as described above or permits the mortgagee to require
insurance as described above, and permits the mortgagee to purchase such
insurance at the Mortgagor's expense if the Mortgagor fails to do so.
Additionally, for any Mortgage Loan having an unpaid principal balance
equal to or greater than $15,000,000, the insurer has a claims paying
ability rating from S&P or Fitch of not less than "A-" (or the equivalent)
or A.M. Best of not less than "A-:V" (or the equivalent).
14. (A) Other than payments due but not yet thirty (30) days or more
delinquent, there is no material default, breach, violation or event of
acceleration existing under the related Mortgage or the related Mortgage
Note, and to the Seller's actual knowledge no event (other than payments
due but not yet delinquent) which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a
material default, breach, violation or event of acceleration, 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 paragraph of this
Schedule I or in any paragraph of Schedule II, and (B) the Seller has not
waived any material default, breach, violation or event of acceleration
under such Mortgage or Mortgage Note, except for a written waiver
contained in the related Mortgage File being delivered to the Purchaser,
and no such waiver has been granted since the later of: (a) the date upon
which the due diligence file related to the applicable Mortgage Loan was
delivered to Cadim TACH inc., or an affiliate, or (b) the date of the
origination of such Mortgage Loan, and pursuant to the terms of the
related Mortgage or the related Mortgage Note and other documents in the
related Mortgage File no Person or party other than the holder of such
Mortgage Note may declare any event of default or accelerate the related
indebtedness under either of such Mortgage or Mortgage Note.
15. As of the Closing Date, each Mortgage Loan is not, and in the prior 12
months (or since the date of origination if such Mortgage Loan has been
originated within the past 12 months), has not been, thirty (30) days or
more past due in respect of any Scheduled Payment.
16. Except with respect to ARD Loans, which provide that the rate at which
interest accrues thereon increases after the Anticipated Repayment Date,
the Mortgage Rate (exclusive of any default interest, late charges or
Prepayment Premiums) of such Mortgage Loan is a fixed rate.
17. Each related Mortgage or related Mortgage Loan documents do not provide
for or permit, without the prior written consent of the holder of the
Mortgage Note, each related Mortgaged Property to secure any other
promissory note or obligation except as expressly described in such
Mortgage or related Mortgage Loan documents.
18. Each Mortgage Loan constitutes a "qualified mortgage" within the meaning
of Section 860G(a)(3)of the Code, is directly secured by a Mortgage on a
commercial property or a multifamily residential property, and either (1)
substantially all of the proceeds of such Mortgage Loan were used to
acquire, improve or protect the portion of such commercial or multifamily
residential property that consists of an interest in real property (within
the meaning of Treasury Regulations Sections 1.856-3(c) and 1.856-3(d))
and such interest in real property was the only security for such Mortgage
Loan as of the Testing Date (as defined below), or (2) the fair market
value of the interest in real property which secures such Mortgage Loan
was at least equal to 80% of the principal amount of the Mortgage Loan (a)
as of the Testing Date, or (b) as of the Closing Date. For purposes of the
previous sentence, (1) the fair market value of the referenced interest in
real property shall first be reduced by (a) the amount of any lien on such
interest in real property that is senior to the Mortgage Loan, and (b) a
proportionate amount of any lien on such interest in real property that is
on a parity with the Mortgage Loan, and (2) the "Testing Date" shall be
the date on which the referenced Mortgage Loan was originated unless (a)
such Mortgage Loan was modified after the date of its origination in a
manner that would cause a "significant modification" of such Mortgage Loan
within the meaning of Treasury Regulations Section 1.1001-3(b), and (b)
such "significant modification" did not occur at a time when such Mortgage
Loan was in default or when default with respect to such Mortgage Loan was
reasonably foreseeable. However, if the referenced Mortgage Loan has been
subjected to a "significant modification" after the date of its
origination and at a time when such Mortgage Loan was not in default or
when default with respect to such Mortgage Loan was not reasonably
foreseeable, the Testing Date shall be the date upon which the latest such
"significant modification" occurred. The related Mortgaged Property, if
acquired by a REMIC in connection with the default or imminent default of
such Mortgage Loan and if operated in accordance with Treasury Regulations
Section 1.856-6, would constitute "foreclosure property" within the
meaning of Section 860G(a)(8) of the Code.
19. One or more environmental site assessments or updates thereof (meeting
American Society for Testing and Materials ("ASTM") standards) were
performed by an environmental consulting firm independent of the Seller
and the Seller's affiliates with respect to each related Mortgaged
Property during the 18-months preceding the origination of the related
Mortgage Loan, and the Seller, having made no independent inquiry other
than to review the report(s) prepared in connection with the assessment(s)
referenced herein, has no actual knowledge and has received no notice of
any material adverse environmental condition or circumstance affecting
such Mortgaged Property that was not disclosed in such report(s). If any
such environmental report identified any Recognized Environmental
Condition ("REC"), as that term is defined in the Standard Practice for
Environmental Site Assessments: Phase I Environmental Site Assessment
Process Designation: E 1527-00, as recommended by ASTM, with respect to
the related Mortgaged Property and the same have not been subsequently
addressed in all material respects, then either (i) an escrow of 100% or
more of the amount identified as necessary by the environmental consulting
firm to address the REC is held by the Seller for purposes of effecting
same (and the Mortgagor has covenanted in the Mortgage Loan documents to
perform such work), (ii) the related Mortgagor or other responsible party
having financial resources reasonably estimated to be adequate to address
the REC is required to take such actions or is liable for the failure to
take such actions, if any, with respect to such circumstances or
conditions as have been required by the applicable governmental regulatory
authority or any environmental law or regulation, (iii) the Mortgagor has
provided an environmental insurance policy, (iv) an operations and
maintenance plan has been or will be implemented or (v) such conditions or
circumstances were investigated further and based upon such additional
investigation, a qualified environmental consultant recommended no further
investigation or remediation. All environmental assessments or updates
that were in the possession of the Seller and that relate to a Mortgaged
Property insured by an environmental insurance policy have been delivered
to or disclosed to the environmental insurance carrier or insurance broker
issuing such policy prior to the issuance of such policy. The Mortgage
Loan documents require the Mortgagor to comply with all applicable
environmental laws and each Mortgagor has agreed to indemnify the
mortgagee for any losses resulting from any material, adverse
environmental condition or failure of the Mortgagor to abide by such laws
or has provided environmental insurance.
20. Each related Mortgage and Assignment of Leases, together with applicable
state law, contains customary and enforceable provisions for comparable
mortgaged properties similarly situated such as to render the rights and
remedies of the holder thereof adequate for the practical realization
against the Mortgaged Property of the benefits of the security, including
realization by judicial or, if applicable, non-judicial foreclosure,
subject to the effects of bankruptcy, insolvency, reorganization,
receivership, moratorium, redemption, liquidation or similar law affecting
the right of creditors and the application of principles of equity.
21. No Mortgagor is a debtor in any state or federal bankruptcy or insolvency
proceeding.
22. Each Mortgage Loan is a whole loan (except in respect to each Co-Lender
Loan) and contains no equity participation by the lender or shared
appreciation feature and does not provide for any contingent or additional
interest in the form of participation in the cash flow of the related
Mortgaged Property or, other than the ARD Loans, provide for negative
amortization. The Seller holds no preferred equity interest in the related
Mortgagor.
23. The Mortgage or related Mortgage Loan documents contain a "due on sale"
clause, which provides for the acceleration of the payment of the unpaid
principal balance of the Mortgage Loan if, without the prior written
consent of the holder of the Mortgage, either the related Mortgaged
Property, or any equity interest in the related Mortgagor, is directly or
indirectly transferred, sold or pledged, other than by reason of family
and estate planning transfers, transfers of less than a controlling
interest (as such term is defined in the related Mortgage Loan documents)
in the Mortgagor, issuance of non-controlling new equity interests,
transfers to an affiliate meeting the requirements of the Mortgage Loan,
transfers among existing members, partners or shareholders in the
Mortgagor, transfers among affiliated Mortgagors with respect to Crossed
Loans or multi-property Mortgage Loans or transfers of a similar nature to
the foregoing meeting the requirements of the Mortgage Loan (such as
pledges of ownership interests that do not result in a change of control).
The Mortgage or related Mortgage Loan documents require the Mortgagor to
pay all reasonable fees and expenses associated with securing the consents
or approvals described in the preceding sentence including the cost of any
required counsel opinions relating to REMIC or other securitization and
tax issues and any applicable Rating Agency fees.
24. Except as set forth in the related Mortgage File, the terms of the related
Mortgage Note and Mortgage(s) have not been waived, modified, altered,
satisfied, impaired, canceled, subordinated or rescinded in any manner
which materially interferes with the security intended to be provided by
such Mortgage and no such waiver, modification, alteration, satisfaction,
impairment, cancellation, subordination or rescission has occurred since
the date upon which the due diligence file related to the applicable
Mortgage Loan was delivered to Cadim TACH inc., or an affiliate.
25. Each related Mortgaged Property was inspected by or on behalf of the
related originator or an affiliate during the 12-month period prior to the
related origination date.
26. 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 26, (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.
27. To the Seller's knowledge, as of the date of origination of such Mortgage
Loan, based on an opinion of counsel, an endorsement to the related title
policy, a zoning letter or a zoning report, and, to the Seller's
knowledge, as of the Cut-Off Date, there are no violations of any
applicable zoning ordinances, building codes and land laws applicable to
the Mortgaged Property, the improvements thereon or the use and occupancy
thereof which would have a material adverse effect on the value, operation
or net operating income of the Mortgaged Property which are not covered by
title insurance. Any non-conformity with zoning laws either (i)
constitutes a legal non-conforming use or structure which, in the event of
casualty or destruction, may be restored or repaired to the full extent of
the use or structure at the time of such casualty or for which law and
ordinance insurance coverage has been obtained in amounts customarily
required by prudent commercial mortgage lenders, or (ii) such
non-conformity does not materially and adversely affect the use, operation
or value of the Mortgaged Property.
28. To the Seller's actual knowledge based on surveys and/or the title policy
referred to herein obtained in connection with the origination of each
Mortgage Loan, none of the material improvements, which were included for
the purposes of determining the appraised value of the related Mortgaged
Property, at the time of the origination of the Mortgage Loan, lies
outside of the boundaries and building restriction lines of such property
(except Mortgaged Properties which are legal non-conforming uses), to an
extent which would have a material adverse affect on the value of the
Mortgaged Property or related Mortgagor's use and operation of such
Mortgaged Property (unless affirmatively covered by title insurance) and
no improvements on adjoining properties encroached upon such Mortgaged
Property to any material and adverse extent (unless affirmatively covered
by title insurance).
29. Each Mortgage Loan with an original principal balance over $5,000,000
requires the Mortgagor to be for at least for so long as the Mortgage Loan
is outstanding and, to Seller's actual knowledge, each Mortgagor is, a
Single-Purpose Entity. For this purpose, "Single-Purpose Entity" means a
person, other than an individual, whose organizational documents provide,
or which entity represented and covenanted in the related Mortgage Loan
documents, substantially to the effect that such Mortgagor (i) does not
and will not have any material assets other than those related to its
interest in such Mortgaged Property or Properties or the financing
thereof; (ii) does not and will not have any indebtedness other than as
permitted by the related Mortgage or other related Mortgage Loan
documents; (iii) maintains its own books, records and accounts, in each
case which are separate and apart from the books, records and accounts of
any other person; and (iv) holds itself out as being a legal entity,
separate and apart from any other person. With respect to each Mortgage
Loan with an original principal balance over $15,000,000, the
organizational documents of the related Mortgagor provide substantially to
the effect that such Mortgagor (i) does not and will not have any material
assets other than those related to its interest in such Mortgaged Property
or Properties or the financing thereof; (ii) does not and will not have
any indebtedness other than as permitted by the related Mortgage or other
related Mortgage Loan documents; (iii) maintains its own books, records
and accounts, in each case which are separate and apart from the books,
records and accounts of any other person; and (iv) holds itself out as
being a legal entity, separate and apart from any other person. Each such
Mortgage Loan having an original principal balance of $20,000,000 or more
has a counsel's opinion regarding non-consolidation of the Mortgagor in
any insolvency proceeding involving any other party. The organizational
documents of any Mortgagor on a Mortgage Loan having an original principal
balance of $15,000,000 or more which is a single member limited liability
company provide that the Mortgagor shall not dissolve or liquidate upon
the bankruptcy, dissolution, liquidation or death of the sole member. With
respect to any such single member limited liability company, which is the
Mortgagor on a Mortgage Loan having an original principal balance of
$15,000,000 or more, the Mortgage Loan has an opinion of such Mortgagor's
counsel confirming that the law of the jurisdiction in which such single
member limited liability company was organized permits such continued
existence upon such bankruptcy, dissolution, liquidation or death of the
sole member of the Mortgagor.
30. No advance of funds has been made other than pursuant to the loan
documents, directly or indirectly, by the Seller to the Mortgagor and, to
the Seller's actual knowledge, no funds have been received from any Person
other than the Mortgagor, for or on account of payments due on the
Mortgage Note or the Mortgage.
31. As of the date of origination and, to the Seller's actual knowledge, as of
the Cut-Off Date, there was no pending action, suit or proceeding, or
governmental investigation of which it has received notice, against the
Mortgagor or the related Mortgaged Property the adverse outcome of which
could reasonably be expected to materially and adversely affect such
Mortgagor's ability to pay principal, interest or any other amounts due
under such Mortgage Loan or the security intended to be provided by the
Mortgage Loan documents or the current use of the Mortgaged Property.
32. As of the date of origination, and, to the Seller's actual knowledge, as
of the Cut-Off Date, if the related Mortgage is a deed of trust, a
trustee, duly qualified under applicable law to serve as such, has either
been properly designated and serving under such Mortgage or may be
substituted in accordance with the Mortgage and applicable law.
33. The Mortgage Loan and the interest (exclusive of any default interest,
late charges or Prepayment Premiums) contracted for on such Mortgage Loan
(other than an ARD Loan after the Anticipated Repayment Date) complied as
of the date of origination with, or is exempt from, applicable state or
federal laws, regulations and other requirements pertaining to usury.
34. Except with respect to the Companion Loan of any Co-Lender Loan, the
related Mortgage Note is not secured by any collateral that secures a
Mortgage Loan that is not in the Trust Fund and each Crossed Loan is
cross-collateralized only with other Mortgage Loans sold pursuant to this
Agreement.
35. The improvements located on the Mortgaged Property are either (A) not
located in a federally designated special flood hazard area or, (B) if so
located, the Mortgagor is required to maintain or the mortgagee maintains,
flood insurance with respect to such improvements and such policy is in
full force and effect in an amount no less than the lesser of (i) the
original principal balance of the Mortgage Loan, (ii) the value of such
improvements on the related Mortgaged Property located in such flood
hazard area or (iii) the maximum allowed under the related federal flood
insurance program.
36. All escrow deposits and payments required pursuant to the Mortgage Loan as
of the Closing Date required to be deposited with the Seller in accordance
with the Mortgage Loan documents have been so deposited, are in the
possession, or under the control, of the Seller or its agent and there are
no deficiencies in connection therewith.
37. To the Seller's actual knowledge, based on the due diligence customarily
performed in the origination of comparable mortgage loans by prudent
commercial and multifamily mortgage lending institutions with respect to
the related geographic area and properties comparable to the related
Mortgaged Property, as of the date of origination of the Mortgage Loan,
the related Mortgagor, the related lessee, franchisor or operator was in
possession of all material licenses, permits and authorizations then
required for use of the related Mortgaged Property by the related
Mortgagor, and, as of the Cut-Off Date, the Seller has no actual knowledge
that the related Mortgagor, the related lessee, franchisor or operator was
not in possession of such licenses, permits and authorizations. The
Mortgage Loan documents require the Mortgagor to maintain all such
licenses, permits, authorizations and franchises.
38. The origination (or acquisition, as the case may be), servicing and
collection practices used by the Seller with respect to the Mortgage Loan
have been in all respects legal and have met customary industry standards
for servicing of commercial mortgage loans for conduit loan programs.
39. The related Mortgagor (or its affiliate) has title in the fee simple
interest in each related Mortgaged Property.
40. The Mortgage Loan documents for each Mortgage Loan provide that each
Mortgage Loan is non-recourse to the related Mortgagor except that the
related Mortgagor and an additional guarantor, who is a natural person,
accepts responsibility for fraud and/or other intentional material
misrepresentation and environmental indemnity. Furthermore, the Mortgage
Loan documents for each Mortgage Loan provide that the related Mortgagor
and an additional guarantor, who is a natural person, shall be liable to
the lender for losses incurred due to the misapplication or
misappropriation of rents collected in advance or received by the related
Mortgagor after the occurrence of an event of default and not paid to the
mortgagee or applied to the Mortgaged Property in the ordinary course of
business, misapplication or conversion by the Mortgagor of insurance
proceeds or condemnation awards or breach of the environmental covenants
in the related Mortgage Loan documents.
41. Subject to the exceptions set forth in paragraph (5) and upon possession
of the Mortgaged Property as required under applicable state law, the
Assignment of Leases set forth in the Mortgage or separate from the
related Mortgage and related to and delivered in connection with each
Mortgage Loan establishes and creates a valid, subsisting and enforceable
lien and security interest in the related Mortgagor's interest in all
leases, subleases, licenses or other agreements pursuant to which any
Person is entitled to occupy, use or possess all or any portion of the
real property.
42. With respect to such Mortgage Loan, any Prepayment Premium and Yield
Maintenance Charge constitutes a "customary prepayment penalty" within the
meaning of Treasury Regulations Section 1.860G-1(b)(2).
43. If such Mortgage Loan contains a provision for any defeasance of mortgage
collateral, such Mortgage Loan permits defeasance (1) no earlier than two
years after the Closing Date and (2) only with substitute collateral
constituting "government securities" within the meaning of Treasury
Regulations Section 1.860G-2(a)(8)(i) in an amount sufficient to make all
scheduled payments under the Mortgage Note. Such Mortgage Loan was not
originated with the intent to collateralize a REMIC offering with
obligations that are not real estate mortgages. In addition, if such
Mortgage contains such a defeasance provision, it provides (or otherwise
contains provisions pursuant to which the holder can require) that an
opinion be provided to the effect that such holder has a first priority
perfected security interest in the defeasance collateral. The related
Mortgage Loan documents permit the lender to charge all of its expenses
associated with a defeasance to the Mortgagor (including Rating Agencies'
fees, accounting fees and attorneys' fees), and provide that the related
Mortgagor must deliver (or otherwise, the Mortgage Loan documents contain
certain provisions pursuant to which the lender can require) (a) an
accountant's certification as to the adequacy of the defeasance collateral
to make payments under the related Mortgage Loan for the remainder of its
term, (b) an Opinion of Counsel that the defeasance complies with all
applicable REMIC Provisions, and (c) assurances from the Rating Agencies
that the defeasance will not result in the withdrawal, downgrade or
qualification of the ratings assigned to the Certificates. Notwithstanding
the foregoing, some of the Mortgage Loan documents may not affirmatively
contain all such requirements, but such requirements are effectively
present in such documents due to the general obligation to comply with the
REMIC Provisions and/or deliver a REMIC Opinion of Counsel.
44. To the extent required under applicable law as of the date of origination,
and necessary for the enforceability or collectability of the Mortgage
Loan, the originator of such Mortgage Loan was authorized to do business
in the jurisdiction in which the related Mortgaged Property is located at
all times when it originated and held the Mortgage Loan.
45. Neither the Seller nor any affiliate thereof has any obligation to make
any capital contributions to the Mortgagor under the Mortgage Loan.
46. Except with respect to the Companion Loan of any Co-Lender Loan, none of
the Mortgaged Properties is encumbered, and none of the related Mortgage
Loan documents permits the related Mortgaged Property to be encumbered
subsequent to the Closing Date without the prior written consent of the
holder thereof, by any lien securing the payment of money junior to or of
equal priority with, or superior to, the lien of the related Mortgage
(other than Title Exceptions, taxes, assessments and contested mechanics
and materialmens liens that become payable after the Cut-Off Date of the
related Mortgage Loan).
47. 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.
48. An appraisal of the related Mortgaged Property was conducted in connection
with the origination of such Mortgage Loan; and such appraisal satisfied
either (A) the requirements of the "Uniform Standards of Professional
Appraisal Practice" as adopted by the Appraisal Standards Board of the
Appraisal Foundation, or (B) the guidelines in Title XI of the Financial
Institutions Reform, Recovery and Enforcement Act or 1989, in either case
as in effect on the date such Mortgage Loan was originated.
49. In the origination and servicing of the Mortgage Loan, neither 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.
50. Each Mortgage or related Mortgage Loan documents require the Mortgagor,
upon request, to provide the owner or holder of the Mortgage with
quarterly (except for some Mortgage Loans with an original principal
balance less than $5,000,000) and annual operating statements (or a
balance sheet and statement of income and expenses), rent rolls (if there
is more than one tenant) and related information, which annual financial
statements for all Mortgage Loans with an outstanding principal balance
greater than $20,000,000 are required to be audited by an independent
certified public accountant.
51. 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.
52. If the Mortgaged Property securing any Mortgage Loan is covered by a
secured creditor policy, then:
(a) the Seller:
(i) has disclosed, or is aware that there has been disclosed, in
the application for such policy or otherwise to the insurer
under such policy the "pollution conditions" (as defined in
such policy) identified in any environmental reports related
to such Mortgaged Property which are in the Seller's
possession or are otherwise known to the Seller; or
(ii) has delivered or caused to be delivered to the insurer or its
agent under such policy copies of all environmental reports in
the Seller's possession related to such Mortgaged Property;
in each case, with respect to clause (i) or (ii) above, to the
extent required by such policy or to the extent the failure to make
any such disclosure or deliver any such report would materially and
adversely affect the Mortgagor's ability to recover under such
policy;
(b) all premiums for such insurance have been paid;
(c) such insurance is in full force and effect;
(d) such insurance has a term of at least five years beyond the maturity
date (or the Anticipated Repayment Date for ARD Loans) of such
Mortgage Loan;
(e) an environmental report, a property condition report or an
engineering report was prepared that included an assessment for
lead-based paint ("LBP") (in the case of a multifamily property
built prior to 1978), asbestos-containing materials ("ACM") (in the
case of any property built prior to 1985) and radon gas ("RG") (in
the case of a multifamily property) at such Mortgaged Property and
(ii) if such report disclosed the existence of a material and
adverse LBP, ACM or RG environmental condition or circumstance
affecting such Mortgaged Property, then, except as otherwise
described on Schedule II, (A) the related Mortgagor was required to
remediate such condition or circumstance prior to the closing of the
subject Mortgage Loan, or (B) the related Mortgagor was required to
provide additional security reasonably estimated to be adequate to
cure such condition or circumstance, or (C) such report did not
recommend any action requiring the expenditure of any material funds
and the related Mortgage Loan documents require the related
Mortgagor to establish an operations and maintenance plan with
respect to such condition or circumstance after the closing of such
Mortgage Loan; and
(f) rights under such policy inure to the benefit of the Purchaser.
SCHEDULE II
CWCapital Mortgage Securities I LLC
EXCEPTIONS TO MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
Exception to Representation 8
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Mortgage Loan Exception
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Loan No. 128 (Willowood Estates) The lien on the portion of the Mortgaged Property that consists of
park-owned homes is effected by the issuance of a certificate of title
electronically maintained by the Kansas Dept. of Revenue ("KDOR"). A
"notice of security interest" was filed with KDOR at origination and the
title applications are pending.
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Loan No. 122 (Lido Estate MHC) The lien on the portion of the Mortgaged Property that consists of
park-owned homes is effected by the issuance of a certificate of title -
applications pending.
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Exception to Representation 11
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Mortgage Loan Exception
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Loan No. 000 (Xxxxxxxxxx Xxxxxxx) In November 2005, a fire destroyed a clubhouse and an office at the
Mortgaged Property. The Mortgagor is require to restore the Mortgaged
Property to its pre-existing condition by September 2006, and the
guarantor has personally guaranteed repayment of the Mortgage Loan in
the event the restoration is not effected in accordance with the
Mortgage.
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Exception to Representation 13
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Mortgage Loan Exception
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Loan Nos. 79 and 117 (Westchase I and II The loan documents require the Mortgagor to provide only 15 days prior
and Conn's - Goodwill Shopping Center) notice of any policy termination or reduction.
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Exception to Representation 29
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Mortgage Loan Exception
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Loan No. 52 (EDS Building) The Mortgagor is not a Single Purpose Entity. The organizational
documents of the Mortgagor do not provide that it shall not dissolve in
liquidate upon any insolvency - related events of its sole member; no
opinion to such effect was delivered at origination of the Mortgage
Loan.
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Exception to Representation 37
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Mortgage Loan Exception
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Loan No. 79 (Westchase I and II) Certain tenants at the Mortgaged Property are not in possession of
certificates of occupancy. The Mortgagor is required to obtain a
certificate of occupancy for any new tenant and the loan documents also
require the Mortgagor and the non-recourse carveout guarantor to
indemnify for any losses attributable to any missing certificate of
occupancy.
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Exception to Representation 50
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Mortgage Loan Exception
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Loan No. 52 (EDS Building) The loan documents require the Mortgagor to deliver only annual
operating statements.
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