EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated
as
of March 14, 2007, between CITIGROUP GLOBAL MARKETS REALTY CORP.,
as seller (the
"Seller"), and CITIGROUP COMMERCIAL MORTGAGE SECURITIES INC.
("CCMSI"), as
purchaser (the "Purchaser").
The Seller intends to sell, and the Purchaser intends to purchase,
certain multifamily, commercial and/or manufactured housing
community mortgage
loans (the "Mortgage Loans") identified on the schedule (the
"Mortgage Loan
Schedule") annexed hereto as "Annex 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"), to be dated as of March 1, 2007, among CCMSI, as
depositor, Midland
Loan Services, Inc., Wachovia Bank, National Association and
Capmark Finance
Inc., as master servicers (each, a "Master Servicer" and, together,
the "Master
Servicers"), LNR Partners, Inc., as special servicer (the "Special
Servicer"),
Wells Fargo Bank, National Association, as trustee (the "Trustee")
and LaSalle
Bank National Association, as certificate administrator (the
"Certificate
Administrator"). Capitalized terms used herein (including the
schedules attached
hereto) but not defined herein (or in such schedules) have the
respective
meanings set forth in the Pooling and Servicing Agreement.
CCMSI intends to sell certain Classes of the Certificates (the
"Publicly Offered Certificates") to Citigroup Global Markets Inc.
("CGMI"),
Deutsche Bank Securities Inc. ("DBS"), LaSalle Financial Services,
Inc., RBC
Capital Markets Corporation and PNC Capital Markets LLC
(collectively, the
"Dealers"), pursuant to an underwriting agreement dated as of the
date hereof
(the "Underwriting Agreement"), between CCMSI and the Dealers. The
Publicly
Offered Certificates are more particularly described in a
prospectus supplement
dated March 14, 2007 (the "Prospectus Supplement") and the
accompanying base
prospectus dated March 5, 2007 (the "Base Prospectus" and, together
with the
Prospectus Supplement, the "Prospectus").
CCMSI further intends to sell the remaining Classes of the
Certificates (the "Privately Offered Certificates") to CGMI and
DBS, pursuant to
a certificate purchase agreement dated as of the date hereof (the
"Certificate
Purchase Agreement"), between CCMSI, CGMI and DBS. The Privately
Offered
Certificates are more particularly described in an offering
memorandum dated
March 14, 2007 (the "Memorandum").
Certain Classes of the Certificates will be assigned ratings by
Fitch, Inc., Moody's Investors Service, Inc. and/or Standard &
Poor's Rating
Services, a division of The McGraw-Hill Companies, Inc. (together,
the "Rating
Agencies").
In connection with its sale of the Mortgage Loans, the Seller shall
enter into an indemnification agreement dated as of the date hereof
(the
"Indemnification Agreement"), between the Seller, CCMSI and the
Dealers.
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 as of the close of business on the
Cut-off Date
(the "Seller Mortgage Loan Balance") of $1,741,407,241 (subject to
a variance of
plus or minus 5.0%), after giving effect to any payments due on or
before such
date, whether or not such payments are received. The Seller
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
$6,599,815,279 (subject to a variance of plus or minus 5.0%). The
purchase and
sale of the Mortgage Loans shall take place on March 29, 2007 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 consist of a cash amount, payable in immediately
available funds, as
reflected on the settlement statement agreed to by the Seller and
the Purchaser,
which amount shall include interest accrued on the Seller Mortgage
Loan Balance
for the period from and including the Cut-off Date up to but not
including the
Closing Date. The Aggregate Purchase Price shall be reduced, with
respect to the
initial Date Deposit Loan, by its Initial Date Deposit. For
purposes of the
foregoing, the Initial Date Deposit Loan is that Mortgage Loan
known as (and
identified on the Mortgage Loan Schedule as) Smart and Final -
Phoenix, AZ.
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 or
waiver 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 and
any escrow, reserve or comparable accounts related to the Mortgage
Loans,
subject, in the case of any Mortgage Loan that is part of a Loan
Combination, to
the rights of the holder(s) of any other mortgage loan(s) in the
related Loan
Combination in such proceeds and reserve or comparable accounts,
and further
subject to the understanding that the Seller will sell
2
certain servicing rights to the applicable Master Servicer pursuant
to that
certain Servicing Rights Purchase Agreement, dated as of the
Closing Date,
between such Master Servicer and the Seller, and may require that a
particular
primary servicer remain in place with respect to any or all of the
Mortgage
Loans.
(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 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 or cause to be delivered to the Trustee
(with a copy
(except in the case of an Outside Serviced Trust Mortgage Loan or
any letter of
credit referred to in clause (xi)(D) below) to the applicable
Master Servicer
and the Special Servicer within ten (10) Business Days after the
Closing Date)
the documents and instruments specified below under clauses (i),
(ii), (vii),
(ix)(A) and (xi)(D) and shall, not later than the date that is 30
days after the
Closing Date, deliver or cause to be delivered to the Trustee (with
a copy to
the applicable Master Servicer) the remaining documents and
instruments
specified below, in each case with respect to each Mortgage Loan
that is a
Serviced Trust Mortgage Loan (the documents and instruments
specified below,
collectively, the "Mortgage File"). The Mortgage File for each
Serviced Trust
Mortgage Loan shall contain the following documents:
(i)
either (A) in the case of any Serviced Trust Mortgage
Loan, 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 "Wells Fargo Bank, National Association, as trustee for
the
registered holders of CD 2007-CD4 Commercial Mortgage Trust,
Commercial
Mortgage Pass-Through Certificates, Series CD 2007-CD4", or in
blank (or a
lost note affidavit and indemnity with a copy of such Mortgage Note
attached thereto) or (B) in the case of any Serviced Non-Trust
Mortgage
Loan, a copy of the executed Mortgage Note;
(ii)
an original or a 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 a 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;
3
(iv)
an original executed assignment, in recordable form
(except for any missing recording information and, if delivered in
blank,
the name of the assignee), of (A) the Mortgage, (B) any related
Assignment
of Leases (if such item is a document separate from the Mortgage)
and (C)
any other recorded document relating to the subject Mortgage Loan
otherwise included in the Mortgage File, in favor of "Wells Fargo
Bank,
National Association, as trustee for the registered holders of CD
2007-CD4
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates,
Series CD 2007-CD4" (and, in the case of a Serviced Loan
Combination, also
on behalf of the related Serviced Non-Trust Mortgage Loan
Noteholder(s)),
or in blank;
(v)
an original assignment of all unrecorded documents
relating to the Trust Mortgage Loan (to the extent not already
assigned
pursuant to clause (iii) above), in favor of "Wells Fargo Bank,
National
Association, as trustee for the registered holders of CD 2007-CD4
Commercial Mortgage Trust, Commercial Mortgage Pass-Through
Certificates,
Series CD 2007-CD4" (and, in the case of a Serviced Loan
Combination, also
on behalf of the related Serviced Non-Trust Mortgage Loan
Noteholder(s)),
or in blank;
(vi)
originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where
the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject 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 pro forma policy or specimen version of, or a marked
commitment
for, 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 reasonably satisfactory to the Purchaser of any
prior
UCC Financing Statements in favor of the originator of the subject
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
when it was to deliver the subject Mortgage File on or prior to the
Closing Date), unless not yet returned by the applicable filing
office;
and, if there is an effective UCC Financing Statement in favor of
the
Seller on record with the applicable public office for UCC
Financing
Statements, an original UCC Financing Statement assignment, in form
suitable for filing in favor of "Wells Fargo Bank, National
Association,
as trustee for the registered holders of CD 2007-CD4 Commercial
Mortgage
Trust, Commercial Mortgage Pass-Through Certificates, Series CD
2007-CD4"
(and, in the case of any A/B Loan Combination, also on behalf of
the
related Serviced Non-Trust Mortgage Loan Noteholder(s)), as
assignee, or
in blank;
4
(ix)
an original or a copy of any (A) Ground Lease and
ground lessor estoppel, (B) loan guaranty or indemnity, (C)
lender's
environmental insurance policy or (D) lease enhancement policy;
(x)
any intercreditor, co-lender or similar agreement
relating to permitted debt of the Mortgagor and any intercreditor
agreement relating to mezzanine debt related to the Mortgagor; and
(xi)
copies of any (A) loan agreement, (B) escrow
agreement, (C) security agreement or (D) letter of credit relating
to a
Trust Mortgage Loan (with the original of any such letter of credit
to be
delivered to the applicable Master Servicer).
The foregoing document delivery requirement shall be subject to
Section 2.01(c) of the Pooling and Servicing Agreement.
With respect to the Crossed Loans constituting a Crossed Group, the
existence of any document required to be in the Mortgage File of
any Crossed
Loan in such Crossed Group shall be sufficient to satisfy the
requirements of
this Agreement for delivery of such document as a part of the
Mortgage File of
the other Crossed Loan(s) in such Crossed Group, to the extent that
such same
document is also required to be part of the Mortgage File for such
other Crossed
Loan(s) in such Crossed Group.
References in this Agreement to "Document Defect" mean that any
document constituting part of the Mortgage File for any Mortgage
Loan has not
been properly executed, is missing (beyond the time period required
for its
delivery hereunder), contains information that does not conform in
any material
respect with the corresponding information set forth in the
Mortgage Loan
Schedule or does not appear regular on its face.
(d)
The Seller, at its own cost and expense, shall retain an
independent third party (the "Recording/Filing Agent") that shall,
as to each
Mortgage Loan (other than Outside Serviced Trust Mortgage Loans),
promptly (and
in any event, as to any such Mortgage Loan, within 90 days
following the later
of (i) the Closing Date and (ii) the delivery of the related
Mortgage(s),
Assignment(s) of Leases, recordable documents, and UCC Financing
Statements to
the Trustee) complete (if and to the extent necessary) and cause to
be submitted
for recording or filing, as the case may be, in favor of the
Trustee in the
appropriate public office for real property records or UCC
Financing Statements,
as appropriate, each assignment of Mortgage, assignment of
Assignment of Leases
and assignment of any other recordable documents relating to each
such Mortgage
Loan, referred to in Sections 2(c)(iv)(A), (B) and (C) and each
assignment of a
UCC Financing Statement in favor of the Trustee and so delivered to
the Trustee
and referred to in Section 2(c)(viii). The Seller shall cause the
recorded
original of each such assignment of recordable documents to be
delivered to the
Trustee or its designee following recording, and shall cause the
file copy of
each such UCC Financing Statement to be delivered to the Trustee or
its designee
following filing; provided that in those instances where the public
recording
office retains the original assignment of Mortgage or assignment of
Assignment
of Leases, the Seller or the Recording/Filing Agent shall obtain
therefrom a
certified copy of the recorded original, which shall be delivered
to the Trustee
or its designee. If any such document or instrument is lost or
returned
unrecorded or unfiled, as the case may be, because of a defect
therein, the
Seller
5
shall promptly prepare or cause to be prepared a substitute
therefor or cure
such defect, as the case may be, and thereafter cause the same to
be duly
recorded or filed, as appropriate. The Seller shall be responsible
for the
out-of-pocket costs and expenses of the Recording/Filing Agent in
connection
with its performance of the recording, filing and delivery
obligations
contemplated above.
(e)
The Seller shall deliver or cause to be delivered to the
applicable Master Servicer or such Master Servicer's designee: (i)
within ten
(10) days after the Closing Date, all documents and records in the
Seller's
possession (except draft documents, attorney-client privileged
communications
and internal correspondence, credit underwriting or due diligence
analyses,
credit committee briefs or memoranda or other internal approval
documents or
data or internal worksheets, memoranda, communications or
evaluations and other
underwriting analysis of the Seller) relating to, and necessary for
the
servicing and administration of, each Mortgage Loan (other than an
Outside
Serviced Trust Mortgage Loan) and that are not required to be part
of the
Mortgage File in accordance with the definition thereof (including,
without
limitation, any original letters of credit relating to any Mortgage
Loan); and
(ii) within two (2) Business Days after the Closing Date, any and
all escrow
amounts and reserve amounts in the Seller's possession or under its
control that
relate to the Mortgage Loans (other than an Outside Serviced Trust
Mortgage
Loan).
(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
(other than an
Outside Serviced Trust Mortgage Loan). 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 pursuant to written
instructions from the
applicable Master Servicer.
(g)
After the Seller's transfer of the Mortgage Loans to or at the
direction of the Purchaser, the Seller shall not take any action to
suggest that
the Purchaser is not the legal owner of the Mortgage Loans.
SECTION 3.
Representations, Warranties and Covenants of Seller.
(a)
The Seller hereby represents and warrants to and covenants
with the Purchaser, as of the date hereof, that:
(i)
The Seller is a corporation organized and validly
existing and in good standing under the laws of the State of New
York and
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 the Seller and, assuming due
authorization,
execution and delivery hereof by the Purchaser, constitutes a
legal, valid
and binding obligation of the Seller, enforceable against the
Seller in
accordance with its terms, except as such enforcement
6
may be limited by bankruptcy, insolvency, reorganization,
receivership,
moratorium and other laws 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 the
Seller and the Seller's performance and compliance with the terms
of this
Agreement will not (A) violate the Seller's organizational
documents, (B)
violate any law or regulation or any administrative decree or order
to
which 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 the Seller is a party or by
which
the Seller is bound, which violation, default or breach, in the
case of
either clause (iii)(B) or (iii)(C) might have consequences that
would, in
the Seller's reasonable and good faith judgment, materially and
adversely
affect the financial condition or the operations of the Seller or
its
properties (taken as a whole) or have consequences that would
materially
and adversely affect its performance hereunder;
(iv)
The Seller is not in default with respect to any order
or decree of any court or any order, regulation or demand of any
federal,
state, municipal or other governmental agency or body, which
default might
have consequences that would, in the Seller's reasonable and good
faith
judgment, materially and adversely affect the financial condition
or the
operations of the Seller or its properties (taken as a whole) or
have
consequences that would materially and adversely affect its
performance
hereunder;
(v)
The Seller is not a party to or bound by any agreement
or instrument or subject to any other corporate restriction or any
judgment, order, writ, injunction, decree, law or regulation that
would,
in the Seller's reasonable and good faith judgment, materially and
adversely affect the ability of the Seller to perform its
obligations
under this Agreement or that requires the consent of any third
person to
the execution of this Agreement or the performance by the Seller 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 the Seller of, or compliance by the
Seller
with, this Agreement or the consummation of the transactions
involving the
Seller 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 the Seller's
knowledge, threatened against the Seller that would, in the
Seller's good
faith and reasonable judgment, prohibit its entering into this
Agreement
or materially and adversely affect the performance by the Seller of
its
obligations under this Agreement; and
7
(viii)
For purposes of accounting 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 contemplated by this Agreement. 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 transferring the Mortgage Loans
to the
Purchaser with any intent to hinder, delay or defraud any of the
creditors
of the Seller or on account of an antecedent debt.
(b)
The Seller hereby makes, on the date hereof and on the Closing
Date, the representations and warranties contained in Schedule I
and Schedule II
hereto with respect to each Mortgage Loan, for the benefit of the
Purchaser,
which representations and warranties are subject to the exceptions
set forth on
Schedules III and IV. References in this Agreement to "Breach" mean
a breach of
any such representations and warranties made pursuant to this
Section 3(b) with
respect to any Mortgage Loan.
(c)
If the Seller receives, pursuant to Section 2.03(a) of the
Pooling and Servicing Agreement, written notice of a Document
Defect or a Breach
relating to a Mortgage Loan, and if such Document Defect or Breach
shall
materially and adversely affect the value of the applicable
Mortgage Loan or the
interests of the Certificateholders therein, 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 any party to the Pooling and Servicing
Agreement
discovering such Document Defect or Breach, provided the Seller
receives such
notice in a timely manner), cure such Document Defect or Breach, as
the case may
be, in all material respects, 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 applicable Master Servicer for deposit into its Collection
Account, any
Substitution Shortfall Amount in connection therewith; provided
that, if a
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, then
unless such
Document Defect or Breach would cause the Mortgage Loan not to be a
Qualified
Mortgage, such Seller shall have an additional 90 days to complete
such cure
(or, failing such cure, to repurchase or substitute for the related
Mortgage
Loan); and 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; and provided,
further, that if the
cure of any Document Defect or Breach would require an expenditure
on the part
of the Seller in excess of $10,000, then the Seller may, at its
option, within
the time period provided above, elect to purchase or replace the
affected
Mortgage Loan in accordance with this Section 3 without
8
attempting to cure such Document Defect or Breach, as the case may
be. 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 an uncured
Document Defect
that, to the Seller's knowledge, existed as of the Closing Date,
and that
materially and adversely affects the value of the applicable
Mortgage Loan or
the interests of the Certificateholders therein, the Seller shall
provide the
officer's certificate to the Trustee described above as to the
reasons such
Document Defect remains uncured and as to the actions being taken
to pursue
cure.
No substitution of a Qualified Substitute Mortgage Loan or
Qualified
Substitute Mortgage Loans may be made in any calendar month after
the
Determination Date in such month. Periodic Payments due with
respect to any
Qualified Substitute Mortgage Loan after the related due date in
the month of
substitution shall be part of the Trust Fund, and Periodic Payments
received
with respect to the replaced Mortgage Loan or a repurchased
Mortgage Loan after
the related date of substitution or repurchase, as the case may be,
shall belong
to the Seller. Periodic Payments due with respect to any Qualified
Substitute
Mortgage Loan on or prior to the related due date in the month of
substitution
shall not be part of the Trust Fund and shall be remitted to the
Seller promptly
following receipt, and Periodic Payments received with respect to
the replaced
Mortgage Loan or a repurchased Mortgage Loan up to and including
the related
date of substitution or repurchase, as the case may be, shall
belong to the
Trust Fund.
(d)
If (i) any Mortgage Loan is required to be repurchased or
substituted for in the manner described above, (ii) such Mortgage
Loan is 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
each other
Crossed Loan in the Crossed Group for purposes of this paragraph,
and the Seller
will be required to repurchase or substitute for the remaining
Crossed Loan(s)
in the related Crossed Group as provided in the immediately
preceding paragraph
unless: (x) such other Crossed Loans in such Crossed Group satisfy
the Crossed
Loan Repurchase Criteria; (y) the Seller (at its expense) shall
have furnished
the Trustee with an Opinion of Counsel to the effect that the
repurchase of or
substitution for the affected Crossed Loan only, including, without
limitation,
any modification required with respect to such repurchase or
substitution, shall
not cause an Adverse REMIC Event; and (z) the repurchase of or
substitution for
the affected Crossed Loan only shall satisfy all other criteria for
repurchase
or substitution, as applicable, of Mortgage Loans set forth herein
or in the
Pooling and Servicing Agreement. If the conditions set forth in
clauses (x), (y)
and (z) of the prior sentence are satisfied, the Seller may elect
either to
repurchase or substitute for only the affected Crossed Loan as to
which the
related Document Defect or Breach 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
applicable 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 purchase or substitute for a
Crossed Loan
hereunder in the manner prescribed above while the Purchaser
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
Purchaser, the
9
Primary Collateral securing the Crossed Loans still held by the
Purchaser, so
long as such exercise does not materially impair the ability of the
other party
to exercise its remedies against its Primary Collateral.
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, if not specified
in the
related Mortgage Loan documents, 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
such modification shall not cause an Adverse REMIC Event. Any
expenses incurred
by the Purchaser in connection with such modification or
accommodation
(including but not limited to recoverable attorney fees) shall be
paid by the
Seller.
Notwithstanding any of the foregoing provisions of this Section
3(d), if there is a Document Defect or Breach (which Document
Defect or Breach
shall materially and adversely affect the value of the related
Mortgage Loan or
the interests of the Certificateholders therein) with respect to
one or more
Mortgaged Properties with respect to a Mortgage Loan, the Seller
shall not be
obligated to repurchase or replace the Mortgage Loan if (i) the
affected
Mortgaged Property(ies) may be released pursuant to the terms of
any partial
release provisions in the related Mortgage Loan documents (and such
Mortgaged
Property(ies) are, in fact, released) and, to the extent not
covered by the
applicable release price (if any) required under the related
Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional
amounts
necessary to cover all reasonable out-of-pocket expenses reasonably
incurred by
the applicable Master Servicer, the Special Servicer, the Trustee,
the
Certificate Administrator or the Trust Fund in connection with such
release,
(ii) the remaining Mortgaged Property(ies) satisfy the
requirements, if any, set
forth in the related Mortgage Loan documents and the Seller
provides an opinion
of counsel to the effect that such release would not cause any
REMIC created
under the Pooling and Servicing Agreement to fail to qualify as a
REMIC under
the Code or result in the imposition of any tax on "prohibited
transactions" or
"contributions" after the Startup Day under the REMIC Provisions
and (iii) the
Seller obtains from each Rating Agency then rating the Certificates
and delivers
to the Trustee and the applicable Master Servicer written
confirmation that such
release would not cause the then-current ratings of the
Certificates rated by it
to be qualified, downgraded or withdrawn.
(e)
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 Collection
Account
maintained by the applicable Master Servicer, and the delivery of
the Mortgage
File(s) and the Servicing File(s) for the related Qualified
Substitute Mortgage
Loan(s) to the Trustee and the applicable Master Servicer,
respectively, if
applicable,
10
(i) the Trustee shall execute and deliver such endorsements and
assignments as
are provided to it by the applicable Master Servicer or the Seller,
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 replaced Mortgage Loan, as applicable, (ii) the Trustee, the
applicable
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 applicable 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 replaced Mortgage Loans.
(f)
This Section 3 provides the sole remedy available to the
Certificateholders or the Trustee on behalf of the
Certificateholders,
respecting any Document Defect or Breach and the Purchaser
acknowledges and
agrees that the representations and warranties made herein by the
Seller
pursuant to Section 3(b) are solely for risk allocation purposes.
SECTION 4.
Representations and Warranties of the Purchaser. In
order to induce the Seller to enter into this Agreement, the
Purchaser hereby
represents and warrants for the benefit of the Seller as of the
date hereof
that:
(a)
The Purchaser is a corporation duly organized, validly
existing and in good standing under the laws of the State of
Delaware. The
Purchaser has the full corporate power and authority and legal
right to acquire
the Mortgage Loans from the Seller and to transfer the Mortgage
Loans to the
Trustee.
(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)
this Agreement
constitutes the valid, legal and binding agreement of the
Purchaser, enforceable
against the Purchaser in accordance with its terms, except as such
enforcement
may be limited by (i) laws relating to bankruptcy, insolvency,
reorganization,
receivership or moratorium, (ii) other laws relating to or
affecting the rights
of creditors generally, or (iii) general equity principles
(regardless of
whether such enforcement is considered in a proceeding in equity or
at law).
(c)
The Purchaser is not a party to or bound by any agreement or
instrument or subject to any other corporate restriction or any
judgment, order,
writ, injunction, decree, law or regulation that would, in the
Purchaser's
reasonable and good faith judgment, materially and adversely affect
the ability
of the Purchaser 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 the Purchaser of its obligations under this
Agreement (except
to the extent such consent has been obtained).
(d)
No consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by such Purchaser of, or compliance by such Purchaser
with, this
Agreement or the consummation of the transactions of such
contemplated by this
Agreement, except for any consent, approval, authorization or order
which has
been obtained prior to the actual performance by such Purchaser of
its
obligations
11
under this Agreement, or which, if not obtained would not have a
materially
adverse effect on the ability of such Purchaser to perform its
obligations
hereunder.
(e)
None of the acquisition of the Mortgage Loans by the
Purchaser, the transfer of the Mortgage Loans to the Trustee, and
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 constitutes or will constitute a default under
(i) any term
or provision of the Purchaser's certificate of incorporation or
bylaws, (ii) 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 (iii)
any law, rule, regulation, order, judgment, writ, injunction or
decree of any
court or governmental authority having jurisdiction over the
Purchaser or its
assets, which default might have consequences that would, in the
Purchaser's
reasonable and good faith judgment, materially and adversely affect
the
condition (financial or other) or operations of the Purchaser or
its properties
or have consequences that would materially and adversely affect its
performance
hereunder.
(f)
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 the
consideration
contemplated by this Agreement.
(g)
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, in the Purchaser's reasonable and good faith judgment,
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 under the terms of this Agreement.
(h)
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, 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 Thacher Proffitt
& Wood LLP, New
York, New York on the Closing Date.
The Closing shall be subject to each of the following conditions:
(a)
All of the representations and warranties of the Seller set
forth in or made pursuant to Section 3(a) and Section 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 hereunder) and all documents
specified in Section
6 of this Agreement
12
(the "Closing Documents"), in such forms as are agreed upon and
acceptable to
CCMSI, the Seller, the Dealers 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 or its designee shall have delivered and released
to the Trustee (or a Custodian on its behalf) and the applicable
Master
Servicer, respectively, all documents represented to have been or
required to be
delivered to the Trustee and such Master Servicer on or before the
Closing Date
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 the Purchaser shall each
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 shall have paid all fees and expenses payable by it
to CCMSI or otherwise pursuant to this Agreement as of the Closing
Date; and
(f)
The Underwriters and Initial Purchasers shall have received
letters from an independent accounting firm reasonably acceptable
to CCMSI and
the Seller in form satisfactory to CCMSI, relating to certain
information
regarding the Mortgage Loans and Certificates as set forth in the
Prospectus,
the Prospectus Supplement and other disclosure documents.
Both parties agree to use their best efforts to perform their
respective obligations hereunder in a manner that will enable the
Purchaser to
purchase the Mortgage Loans on the Closing Date.
SECTION 6.
Closing Documents. The Closing Documents shall consist
of the following:
(a)
This Agreement, the Pooling and Servicing Agreement and the
Indemnification Agreement, in each case duly executed by all
parties thereto;
(b)
A certificate of the Seller, executed by the Seller and dated
the Closing Date, and upon which CCMSI and the Dealers may rely, to
the effect
that: (i) the representations and warranties of the Seller in this
Agreement and
the Indemnification 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,
subject, in the case of the representations and warranties made by
the Seller
pursuant to Section 3(b) of this Agreement, to the exceptions to
such
representations and warranties set forth in Schedules III and IV to
this
Agreement; and (ii) the Seller has, in all material respects,
complied with all
the agreements and satisfied all the conditions on its part that
are required
under this Agreement to be performed or satisfied at or prior to
the Closing
Date;
(c)
An officer's certificate from the Seller, dated the Closing
Date, and upon which CCMSI and the Dealers may rely, to the effect
that each
individual who, as an officer or representative of the Seller,
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
13
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)
True and complete copies of the certificate of incorporation
and by-laws of the Seller (as certified to by the Secretary or an
assistant
secretary of the Seller), and a certificate of corporate existence
of the Seller
issued by the State of New York not earlier than thirty (30) days
prior to the
Closing Date;
(e)
A written opinion of counsel for the Seller (which opinion may
be from in-house counsel, outside counsel or a combination
thereof), relating to
certain corporate and enforceability matters and reasonably
satisfactory to the
Purchaser, its counsel and the Rating Agencies, dated the Closing
Date and
addressed to CCMSI, the Trustee, the Certificate Administrator, the
Dealers and
the Rating Agencies, together with such other written opinions as
may be
required by the Rating Agencies;
(f)
Such further certificates, opinions and documents as the
Purchaser may reasonably request prior to the sale of the Mortgage
Loans by the
Seller to the Purchaser; and
(g)
A written opinion of counsel for the Purchaser (which opinion
may be from in-house counsel, outside counsel, or a combination
thereof, and may
include a reliance letter addressed to the Seller with respect to
opinions given
to other parties) relating to certain corporate and enforceability
matters and
reasonably satisfactory to the Seller and its counsel, dated the
Closing Date
and addressed to the Seller.
SECTION 7.
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 Seller
Mortgage Loan
Balance represents of the Cut-off Date Pool Balance, the exact
amount of which
shall be as set forth in or determined pursuant to the memorandum
of
understanding, to which the Seller and the Purchaser (or affiliates
thereof) are
parties, with respect to the transactions contemplated by this
Agreement): (i)
the costs and expenses of delivering the Pooling and Servicing
Agreement and the
Certificates; (ii) the costs and expenses of printing (or otherwise
reproducing)
and delivering a final Prospectus and Memorandum and other
customary offering
materials relating to the Certificates; (iii) the initial fees,
costs, and
expenses of the Trustee and the Certificate Administrator
(including reasonable
attorneys' fees) incurred in connection with the securitization of
the Mortgage
Loans and the Other Mortgage Loans; (iv) the filing fee charged by
the
Securities and Exchange 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, the Other Mortgage
Loans and the
Certificates included in the Prospectus, the Memorandum and other
customary
offering materials, including 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
14
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 Dealers. All other costs
and expenses
in connection with the transactions contemplated hereunder shall be
borne by the
party incurring such expense.
SECTION 8.
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
Collection
Accounts, the Distribution Account or, if established, the REO
Accounts (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 in and to the Mortgage Loans
pursuant to the
Pooling and Servicing Agreement, 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, securities
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 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, and in connection therewith the Seller
authorizes the
Purchaser to file any and all appropriate Uniform Commercial Code
financing
statements.
SECTION 9.
Notices. All notices, copies, requests, consents,
demands and other communications in connection herewith shall be in
writing and
telecopied or delivered to the intended recipient at the "Address
for Notices"
specified for such party on Exhibit A hereto 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
15
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 10.
Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained
in this
Agreement, incorporated herein by reference or contained in the
certificates of
officers of the Seller submitted pursuant hereto shall remain
operative and in
full force and effect and shall survive delivery of the Mortgage
Loans by the
Seller to the Purchaser (and by the Purchaser to the Trustee).
SECTION 11.
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 12.
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 13.
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. THE
PARTIES HERETO
INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS
LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14.
Attorneys' Fees. If any legal action, suit or
proceeding is commenced between the Seller 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 15.
Further Assurances. The Seller and the Purchaser agree
to execute and deliver such instruments and take such further
actions as the
other party may, from
16
time to time, reasonably request in order to effectuate the
purposes and to
carry out the terms of this Agreement.
SECTION 16.
Successors and Assigns. The rights and obligations of
the Seller under this Agreement shall not be assigned by the Seller
without the
prior written consent of the Purchaser, except that any person into
which the
Seller may be merged or consolidated, or any corporation resulting
from any
merger, conversion or consolidation to which the Seller is a party,
or any
person succeeding to all or substantially all of the business of
the Seller,
shall be the successor to the Seller hereunder. The Purchaser has
the right to
assign its interest under this Agreement, in whole or in part, as
may be
required to effect the purposes of the Pooling and Servicing
Agreement, and the
assignee shall, to the extent of such assignment, succeed to the
rights and
obligations hereunder of the Purchaser. Subject to the foregoing,
this Agreement
shall bind and inure to the benefit of and be enforceable by the
Seller, the
Purchaser and their permitted successors and assigns. No holder or
beneficial
owner of a Certificate shall be deemed a permitted successor or
assign to the
Purchaser solely by reason of its interest in such Certificate.
SECTION 17.
Amendments. No term or provision of this Agreement may
be waived or modified unless such waiver or modification is in
writing and
signed by a duly authorized officer of the party against whom such
waiver or
modification is sought to be enforced. 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
the Seller
shall be effective against the Seller (in such capacity) unless the
Seller shall
have agreed to such amendment in writing.
SECTION 18.
Accountants' Letters. The parties hereto shall
cooperate with accountants designated by CCMSI and reasonably
acceptable to the
Seller in making available all information and taking all steps
reasonably
necessary to permit such accountants to deliver the letters
required by the
Underwriting Agreement and/or the Certificate Purchase Agreement.
SECTION 19.
Knowledge. Whenever a representation or warranty or
other statement in this Agreement is made with respect to a
Person's
"knowledge", such statement refers to such Person's employees or
agents who were
or are responsible for or involved with the indicated matter and
have actual
knowledge of the matter in question.
SECTION 20.
Disclosure Materials. The Purchaser shall provide the
Seller with a copy of the Memorandum and the Prospectus Supplement
promptly
following their becoming available.
[SIGNATURES COMMENCE ON THE FOLLO
