EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
THIS MORTGAGE LOAN PURCHASE AGREEMENT (this "Agreement") is dated
as
of March 14, 2007, between ROYAL BANK OF CANADA (the "Seller"),
acting through
its branch located at One Liberty Plaza, New York, New York
10006-1404, as
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 and effective as of March 1, 2007, among
CCMSI, as
depositor, Wachovia Bank, National Association, Midland Loan
Services, Inc. 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 $338,918,899 (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 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 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.
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(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;
(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,
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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;
(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
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(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 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
5
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 Canadian chartered bank acting acting
through its branch located at One Liberty Plaza, New York, New York
10006-1404 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 may be
limited by
bankruptcy, insolvency, reorganization, receivership, moratorium
and other
laws affecting the enforcement of creditors' rights in general, as
they
may be applied in the context of the insolvency of a Canadian
chartered
bank or its federally-licensed New York branch, 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;
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(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
(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
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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 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.
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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
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
9
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, (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
10
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 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
11
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 (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
12
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)
A certificate of in-house counsel to the Seller, dated the
Closing Date, and upon which CCMSI and the Dealers may rely, to the
effect that
the individual specified in such certificate who, as an officer or
representative of the Seller, signed this Agreement or any other
document set
forth in such certificate on or before the Closing Date in
connection with the
transactions contemplated herein, has been authorized by a power of
attorney to
execute and deliver in the name and on behalf of the Seller, this
Agreement and
any such other document, and the signature of such person appearing
in this
Agreement and such documents are his genuine signatures;
(d)
A true and complete copy of the by-laws of the Seller (as
certified to by the Secretary or an assistant secretary of the
Seller), a
certificate of confirmation of the Seller
13
issued by Canada's Office of the Superintendent of Financial
Institutions, and a
certificate as to the branch license of the Seller's New York
branch issued by
the Comptroller of the Currency of the United States 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
address
