EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of June 21, 2005
(this
"Agreement"), is entered into between Countrywide Commercial Real
Estate
Finance, Inc. (the "Seller") and Merrill Lynch Mortgage Investors,
Inc. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
certain multifamily, commercial and manufactured housing community
mortgage
loans (the "Mortgage Loans") identified on the schedule (the
"Mortgage Loan
Schedule") annexed hereto as Schedule II. 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 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, dated as of June 1, 2005 (the "Pooling and
Servicing
Agreement"), among the Purchaser as depositor, Midland Loan
Services, Inc., as
master servicer (in such capacity, the "Master Servicer") and as
special
servicer (in such capacity, the "Special Servicer"), and Wells
Fargo Bank, N.A.,
as trustee (the "Trustee"). Capitalized terms used but not defined
herein
(including the schedules attached hereto) have the respective
meanings set forth
in the Pooling and Servicing Agreement.
The Purchaser has entered into an Underwriting Agreement, dated as
of
June 21, 2005 (the "Underwriting Agreement"), with Merrill Lynch,
Pierce, Fenner
& Smith Incorporated ("Merrill Lynch"), for itself and as
representative of
Countrywide Securities Corporation ("Countrywide") and PNC Capital
Markets, Inc.
("PNC"; Merrill Lynch, Countrywide and PNC, collectively, in such
capacity, the
"Underwriters"), whereby the Purchaser will sell to the
Underwriters all of the
Certificates that are to be registered under the Securities Act of
1933, as
amended (such Certificates, the "Publicly-Offered Certificates").
The Purchaser
has also entered into a Certificate Purchase Agreement, dated as of
June 21,
2005 (the "Certificate Purchase Agreement"), with Merrill Lynch,
for itself and
as representative of Countrywide (together in such capacity, the
"Initial
Purchasers"), whereby the Purchaser will sell to the Initial
Purchasers all of
the remaining Certificates (such Certificates, the "Private
Certificates").
Now, therefore, in consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase,
the
Mortgage Loans identified on the Mortgage Loan Schedule. The
Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans
delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are
expected to have
an aggregate principal balance of $456,814,657 (the "Countrywide
Mortgage Loan
Balance") (subject to a variance of plus or minus 5.0%) as of the
close of
business on the Cut-off Date, after giving effect to any payments
due on or
before such date, whether or not such payments are received. The
Countrywide
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
$1,737,992,952 (subject to a variance of plus or minus 5%). The
purchase and
sale of the Mortgage Loans shall take place on June 29, 2005 or
such other date
as shall be mutually acceptable to the parties to this Agreement
(the "Closing
Date"). The consideration (the "Purchase Consideration") for the
Mortgage Loans
shall be equal to (i) 105.1066% of the Countrywide Mortgage Loan
Balance as of
the Cut-off Date, plus (ii) $1,981,649, which amount represents the
amount of
interest accrued on the Countrywide Mortgage Loan Balance at the
related Net
Mortgage Rate for the period from and including the Cut-off Date up
to but not
including the Closing Date.
The Purchase Consideration shall be paid to the Seller or its
designee
by wire transfer in immediately available funds on the Closing
Date.
The Purchaser hereby directs the Seller to deliver, and the Seller
shall deliver, the Closing Date Deposit (in the amount of
$8,444.76) to the
Master Servicer on the Closing Date. The Closing Date Deposit shall
be delivered
to the account specified by the Master Servicer by wire transfer of
immediately
available funds.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to receipt of
the
Purchase Consideration and the satisfaction or waiver of the
conditions to
closing set forth in Section 5 of this Agreement (which conditions
shall be
deemed to have been satisfied or waived upon the Seller's receipt
of the
Purchase Consideration), the Seller does hereby sell, transfer,
assign, set over
and otherwise convey to the Purchaser, without recourse (except as
set forth in
this Agreement), all the right, title and interest of the Seller in
and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such
date, on a
servicing released basis, together with all of the Seller's right,
title and
interest in and to the proceeds of any related title, hazard,
primary mortgage
or other insurance proceeds and all of the Seller's right, title
and interest in
and to the Closing Date Deposit. The Mortgage Loan Schedule, as it
may be
amended, shall conform to the requirements set forth in this
Agreement and the
Pooling and Servicing Agreement.
(b) The Purchaser or its assignee shall 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
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has or will
have, on behalf of the Purchaser, delivered to the Trustee (i) on
or before the
Closing Date, the documents and instruments specified below with
respect to each
Mortgage Loan that are Specially Designated Mortgage Loan Documents
and (ii) on
or before the date that is 30 days after the Closing Date, the
remaining
documents and instruments specified below that are not Specially
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Designated Mortgage Loan Documents with respect to each Mortgage
Loan (the
documents and instruments specified below and referred to in
clauses (i) and
(ii) preceding, collectively, a "Mortgage File"). All Mortgage
Files so
delivered will be held by the Trustee in escrow for the benefit of
the Seller at
all times prior to the Closing Date. Each Mortgage File shall
contain the
following documents:
(i) the original executed Mortgage Note for the subject Mortgage
Loan,
including any power of attorney related to the execution thereof
(or a lost
note affidavit and indemnity with a copy of such Mortgage Note
attached
thereto), 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, N.A., as trustee for the registered holders of Merrill Lynch
Mortgage
Trust 2005-MCP1, Commercial Mortgage Pass-Through Certificates,
Series
2005-MCP1, or in blank;
(ii) an original or copy of the Mortgage, together with originals
or
copies of any and all intervening assignments thereof, in each case
(unless
not yet returned by the applicable recording office) with evidence
of
recording indicated thereon or certified by the applicable
recording
office;
(iii) an original or copy of any related Assignment of Leases (if
such
item is a document separate from the Mortgage), together with
originals or
copies of 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
completion of the assignee's name (if the assignment is delivered
in blank)
and any missing recording information or a certified copy of that
assignment as sent for recording), 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, N.A., as trustee for the registered holders of Merrill
Lynch
Mortgage Trust 2005-MCP1, Commercial Mortgage Pass-Through
Certificates,
Series 2005-MCP1, or in blank;
(v) an original assignment of all unrecorded documents relating to
the
Mortgage Loan (to the extent not already assigned pursuant to
clause (iv)
above) in favor of Wells Fargo Bank, N.A., as trustee for the
registered
holders of Merrill Lynch Mortgage Trust 2005-MCP1, Commercial
Mortgage
Pass-Through Certificates, Series 2005-MCP1, 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;
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(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 a marked version of the policy that has been
executed by an
authorized representative of the title company or an agreement to
provide
the same pursuant to binding escrow instructions executed by an
authorized
representative of the title company) to issue such title insurance
policy;
(viii) any filed copies or other evidence of filing 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
prior to
the Closing Date) 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, a UCC Financing Statement assignment, in form
suitable for filing in favor of Wells Fargo Bank, N.A., as trustee
for the
registered holders of Merrill Lynch Mortgage Trust 2005-MCP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1, as assignee,
or in
blank;
(ix) an original or copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor and any intercreditor agreement relating to mezzanine
debt
related to the Mortgagor;
(xi) an original or a copy of any loan agreement, any escrow or
reserve agreement, any security agreement, any management
agreement, any
agreed upon procedures letter, any lockbox or cash management
agreements,
any environmental reports or any letter of credit, in each case
relating to
the subject Mortgage Loan; and
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or
franchisor
comfort letter.
The foregoing Mortgage File delivery requirement shall be subject
to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall take all actions reasonably necessary to
permit
the Trustee to fulfill its obligations pursuant to Section 2.01(d)
of the
Pooling and Servicing Agreement with respect to the Mortgage Loans,
including
bearing the out-of-pocket costs and expenses of the Trustee in
connection with
the performance by the Trustee of its recording, filing and
delivery obligations
pursuant to Section 2.01(d) of the Pooling and Servicing Agreement.
(e) All such other relevant documents and records that (a) relate
to
the administration or servicing of the Mortgage Loans, (b) are
reasonably
necessary for the ongoing administration and/or servicing of such
Mortgage Loans
by the Master Servicer in connection with its duties under the
Pooling and
Servicing Agreement, and (c) are in the possession or under the
control of the
Seller, together with all unapplied escrow amounts and reserve
amounts in the
possession or under the control of the Seller that relate to the
Mortgage Loans,
shall be delivered or caused to be delivered by the Seller to the
Master
Servicer (or, at the direction of the Master Servicer, to the
appropriate
sub-servicer); provided that the Seller shall not be required to
deliver
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any draft documents, privileged or other communications, 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.
The Seller agrees to use reasonable efforts to deliver to the
Trustee, for
its administrative convenience in reviewing the Mortgage Files, a
mortgage loan
checklist for each Mortgage Loan. The foregoing sentence
notwithstanding, the
failure of the Seller to deliver a mortgage loan checklist or a
complete
mortgage loan checklist shall not give rise to any liability
whatsoever on the
part of the Seller to the Purchaser, the Trustee or any other
person because the
delivery of the mortgage loan checklist is being provided to the
Trustee solely
for its administrative convenience.
(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.
(g) On or before the Closing Date, the Seller shall provide to the
Master Servicer, the initial data (as of the Cut-off Date or the
most recent
earlier date for which such data is available) contemplated by the
CMSA Loan
Setup File, the CMSA Loan Periodic Update File, the CMSA Operating
Statement
Analysis Report and the CMSA Property File.
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 duly organized, validly existing
and
in good standing under the laws of the State of California and the
Seller
has taken all necessary corporate action to authorize the
execution,
delivery and performance of this Agreement by it, and has the power
and
authority to execute, deliver and perform this Agreement and all
transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized, executed
and
delivered by the Seller, all requisite action by the Seller's
directors and
officers has been taken in connection therewith, and (assuming the
due
authorization, execution and delivery hereof by the Purchaser) this
Agreement constitutes the valid, legal and binding agreement of the
Seller,
enforceable against the Seller in accordance with its terms, except
as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency,
fraudulent transfer, reorganization, receivership or moratorium,
(B) other
laws relating to or affecting the rights of creditors generally, or
(C)
general equity principles (regardless of whether such enforcement
is
considered in a proceeding in equity or at law).
(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 certificate of incorporation or
bylaws,
(B) violate any law or regulation or any administrative decree or
order to
which it is subject or (C) constitute a default (or an event which,
with
notice or lapse of time, or both, would constitute a
5
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 default might have consequences that
would, in
the Seller's reasonable and good faith judgment, materially and
adversely
affect the condition (financial or other) or operations of the
Seller or
its properties or 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 condition (financial
or
other) or operations of the Seller or its properties or 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 certificate of incorporation, bylaws
or any
other corporate restriction or any judgment, order, writ,
injunction,
decree, law or regulation that would, in the Seller's reasonable
and good
faith judgment, materially and adversely affect the ability of the
Seller
to perform its obligations under this Agreement or that requires
the
consent of any third person to the execution 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 contemplated by
this
Agreement except as have previously been obtained, and no bulk sale
law
applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the execution,
delivery
or performance of this Agreement by the Seller, results or will
result in
the creation or imposition of any lien on any of the Seller's
assets or
property that would have a material adverse effect upon the
Seller's
ability to perform its duties and obligations under this Agreement
or
materially impair the ability of the Purchaser to realize on the
Mortgage
Loans.
(viii) There is no action, suit, proceeding or investigation
pending
or to the knowledge of the Seller, threatened against the Seller in
any
court or by or before any other governmental agency or
instrumentality
which would, in the Seller's good faith and reasonable judgment,
prohibit
its entering into this Agreement or materially and adversely affect
the
validity of this Agreement or the performance by the Seller of its
obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and
for
federal income tax purposes, the Seller will report the transfer of
the
Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to
the
Purchaser in exchange for consideration consisting of a cash amount
equal
to the Purchase Consideration. 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
6
Loans. The Seller will be solvent at all relevant times prior to,
and will
not be rendered insolvent by, the sale of the Mortgage Loans to the
Purchaser. The Seller is not selling the Mortgage Loans to the
Purchaser
with any intent to hinder, delay or defraud any of the creditors of
the
Seller.
(b) The Seller hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and
the Trustee
for the benefit of the Certificateholders as of the Closing Date
(unless a
different date is specified therein), with respect to (and solely
with respect
to) each Mortgage Loan, subject, however, to the exceptions set
forth on Annex A
to Schedule I of this Agreement.
(c) If the Seller discovers or receives written notice of a
Document
Defect or a Breach relating to a Mortgage Loan pursuant to Section
2.03(a) of
the Pooling and Servicing Agreement, then the Seller shall, not
later than 90
days from such discovery or 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 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), if such Document Defect or Breach
materially and
adversely affects the value of the related Mortgage Loan or the
interests of the
Certificateholders therein, cure such Document Defect or Breach, as
the case may
be, in all material respects, which shall include payment of losses
and any
Additional Trust Fund Expenses associated therewith or, if such
Document Defect
or Breach (other than omissions due solely 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 (which, for the
purposes of
this clause (i), shall include an REO Loan) at the applicable
Purchase Price (as
defined in the Pooling and Servicing Agreement) not later than the
end of such
90-day period or (ii) substitute a Qualified Substitute Mortgage
Loan for such
affected Mortgage Loan (which, for purposes of this clause (ii),
shall include
an REO Loan) not later than the end of such 90-day period (and in
no event later
than the second anniversary of the Closing Date) and pay the Master
Servicer for
deposit into the Collection Account any Substitution Shortfall
Amount in
connection therewith; provided, however, that, unless the Document
Defect or
Breach would cause the Mortgage Loan not to be a Qualified
Mortgage, if such
Document Defect or Breach is capable of being cured but not within
such 90-day
period and the Seller has commenced and is diligently proceeding
with the cure
of such Document Defect or Breach within such 90-day period, the
Seller shall
have an additional 90 days to complete such cure (or, failing such
cure, to
repurchase or substitute the related Mortgage Loan (which, for
purposes of such
repurchase or substitution, shall include an REO 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 the
reason(s)
such Document Defect or Breach is not capable of being cured within
the initial
90-day period and 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 no Document Defect (other than with respect to a
Specially
Designated Mortgage Loan Document) shall be considered to
materially and
adversely affect the interests of the Certificateholders or the
value of the
related Mortgage Loan unless the document with respect to which the
Document
Defect exists is required in connection with an imminent
enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan,
defending any
claim asserted by any borrower or third party
7
with respect to the Mortgage Loan, establishing the validity or
priority of any
lien on any collateral securing the Mortgage Loan or for any
immediate servicing
obligations.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage
Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan
that is
cross-collateralized and cross-defaulted with one or more other
Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a
"Crossed Loan
Group"), which 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 Loan
Group (without regard to this paragraph) and is not cured as
provided for above,
shall be deemed to constitute a Document Defect or Breach, as the
case may be,
as to each other Crossed Loan in the subject Crossed Loan Group for
purposes of
this paragraph and the Seller shall be required to repurchase or
substitute all
such Crossed Loans unless (1) the weighted average debt service
coverage ratio
for all the remaining Crossed Loans for the four calendar quarters
immediately
preceding such repurchase or substitution is not less than the
weighted average
debt service coverage ratio for all such Crossed Loans, including
the affected
Crossed Loan, for the four calendar quarters immediately preceding
such
repurchase or substitution, and (2) the weighted average loan
to-value ratio for
the remaining Crossed Loans determined at the time of repurchase or
substitution
based upon an appraisal obtained by the Special Servicer at the
expense of the
Seller shall not be greater than the weighted average loan-to-value
ratio for
all such Crossed Loans, including the affected Crossed Loan
determined at the
time of repurchase or substitution based upon an appraisal obtained
by the
Special Servicer at the expense of the Seller; provided, that if
such debt
service coverage and loan-to-value criteria are satisfied, any
other Crossed
Loan (that is not the Crossed Loan directly affected by the subject
Document
Defect or Breach), shall be released from its
cross-collateralization and
cross-default provision so long as such Crossed Loan (that is not
the Crossed
Loan directly affected by the subject Document Defect or Breach) is
held in the
Trust Fund; and provided, further, that the repurchase or
replacement of less
than all such Crossed Loans and the release of any Crossed Loan
from a
cross-collateralization and cross-default provision shall be
further subject to
(i) the delivery by the Seller to the Trustee, at the expense of
the Seller, of
an Opinion of Counsel to the effect that such release would not
cause either of
REMIC I or REMIC II 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 (ii) the consent of
the
Controlling Class Representative (if one is then acting), which
consent shall
not be unreasonably withheld or delayed. In the event that one or
more of such
other Crossed Loans satisfy the aforementioned criteria, the Seller
may elect
either to repurchase or substitute for only the affected Crossed
Loan as to
which the related Document Defect or Breach exists or to repurchase
or
substitute for all of the Crossed Loans in the related Crossed Loan
Group. All
documentation relating to the termination of the
cross-collateralization
provisions of a Crossed Loan being repurchased shall be prepared at
the expense
of the Seller and, where required, with the consent of the related
borrower. For
a period of two years from the Closing Date, so long as there
remains any
Mortgage File relating to a Mortgage Loan as to which there is any
uncured
Document Defect or Breach known to the Seller, the Seller shall
provide, once
every ninety days, the officer's certificate to the Trustee
described above as
to the reason(s) such Document Defect or Breach remains uncured and
as to the
actions being taken to pursue cure; provided, however, that,
without limiting
the effect of the foregoing provisions of this Section 3(c), if
such Document
Defect or Breach shall materially and adversely affect the value of
such
Mortgage Loan or the interests of the holders of the Certificates
therein
(subject to
8
the last proviso in the sole sentence of the preceding paragraph),
the Seller
shall in all cases on or prior to the second anniversary of the
Closing Date
either cause such Document Defect or Breach to be cured or
repurchase or
substitute for the affected Mortgage Loan. The delivery of a
commitment to issue
a policy of lender's title insurance as described in representation
8 set forth
on Schedule I hereto in lieu of the delivery of the actual policy
of lender's
title insurance shall not be considered a Document Defect or Breach
with respect
to any Mortgage File if such actual policy of insurance is
delivered to the
Trustee or a Custodian on its behalf not later than the 90th day
following the
Closing Date.
To the extent that the Seller is required to repurchase or
substitute
for a Crossed Loan hereunder in the manner prescribed above in this
Section 3(c)
while the Trustee continues to hold any other Crossed Loans in such
Crossed Loan
Group, the Seller and the Purchaser shall not enforce any remedies
against the
other's Primary Collateral (as defined below), but each is
permitted to exercise
remedies against the Primary Collateral securing its respective
Crossed Loan(s),
so long as such exercise does not materially impair the ability of
the other
party to exercise its remedies against the Primary Collateral
securing the
Crossed Loan(s) held thereby.
If the exercise 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 Loan(s) 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 consistent with this Agreement to remove the threat of
material
impairment as a result of the exercise of remedies. 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 the related Mortgage Loan documents do not so provide, then on a
pro rata
basis based upon their outstanding Stated Principal Balances.
Notwithstanding
the foregoing, if a Crossed Loan is modified to terminate the
related
cross-collateralization and/or cross-default provisions, the Seller
shall
furnish to the Trustee an Opinion of Counsel that such modification
shall not
cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the Mortgaged
Property directly securing a Crossed Loan and excluding any
property as to which
the related lien may only be foreclosed upon by exercise of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section
3(c),
if there is a Document Defect or Breach (which Document Defect or
Breach
materially and adversely affects 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 substitute 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), (ii) the remaining Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the
Mortgage Loan
documents and the Seller provides an opinion of counsel to the
effect that such
release would not cause either of REMIC I or REMIC II 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) each Rating Agency then rating the
9
Certificates shall have provided written confirmation that such
release would
not cause the then-current ratings of the Certificates rated by it
to be
qualified, downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this
paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be
the cure of
such breach by the Seller, which cure shall be effected through the
payment by
the Seller of such costs and expenses (without regard to whether
such costs and
expenses are material or not) specified in such representation that
have not, at
the time of such cure, been received by the Master Servicer or the
Special
Servicer from the related Mortgagor and not a repurchase or
substitution of the
related Mortgage Loan. Following the Seller's remittance of funds
in payment of
such costs and expenses, the Seller shall be deemed to have cured
the breach of
representation 30 in all respects. To the extent any fees or
expenses that are
the subject of a cure by the Seller are subsequently obtained from
the related
Mortgagor, the cure payment made by the Seller shall be returned to
the Seller.
Notwithstanding the prior provisions of this paragraph, the Seller,
acting in
its sole discretion, may effect a repurchase or substitution (in
accordance with
the provisions of this Section 3(c) setting forth the manner in
which a Mortgage
Loan may be repurchased or substituted) of a Mortgage Loan, as to
which
representation 30 set forth on Schedule I has been breached, in
lieu of paying
the costs and expenses that were the subject of the breach of
representation 30
set forth on Schedule I.
(d) In connection with any permitted repurchase or substitution of
one
or more Mortgage Loans contemplated hereby, upon receipt of a
certificate from a
Servicing Officer certifying as to the receipt of the applicable
Purchase Price
(as defined in the Pooling and Servicing Agreement) or Substitution
Shortfall
Amount(s), as applicable, in the Collection Account, and, if
applicable, the
delivery of the Mortgage File(s) and the Servicing File(s) for the
related
Qualified Substitute Mortgage Loan(s) to the Custodian and the
Master Servicer,
respectively, (i) the Trustee shall be required to execute and
deliver such
endorsements and assignments as are provided to it by the 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 substituted Mortgage Loan, as
applicable, (ii) the
Trustee, the Custodian, the Master Servicer and the Special
Servicer shall each
tender to the Seller, upon delivery to each of them of a receipt
executed by the
Seller, all portions of the Mortgage File and other documents
pertaining to such
Mortgage Loan possessed by it, and (iii) the Master Servicer and
the Special
Servicer shall release to the Seller any Escrow Payments and
Reserve Funds held
by it in respect of such repurchased or deleted Mortgage Loan(s).
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Trustee and certify that the
substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or
Qualified
Substitute Mortgage Loans may be made in any calendar month after
the
Determination Date for such month. Periodic Payments due with
respect to any
Qualified Substitute Mortgage Loan after the related date of
substitution shall
be part of REMIC I, as applicable. No substitution of a Qualified
Substitute
Mortgage Loan for a deleted Mortgage Loan shall be permitted under
this
Agreement if, after such substitution, the aggregate of the Stated
Principal
Balances of all
10
Qualified Substitute Mortgage Loans which have been substituted for
deleted
Mortgage Loans exceeds 10% of the aggregate Cut-off Date Balance of
all the
Mortgage Loans and the Other Mortgage Loans. Periodic Payments due
with respect
to any Qualified Substitute Mortgage Loan on or prior to the
related date of
substitution shall not be part of the Trust Fund or REMIC I.
(e) This Section 3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee on behalf of the
Certificateholders, respecting any Document Defect in a Mortgage
File or any
Breach of any representation or warranty set forth in or required
to be made
pursuant to Section 3 of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the
Purchaser.
In order to induce the Seller to enter into this Agreement, the
Purchaser hereby
represents, warrants and covenants 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 and
the Purchaser
has taken all necessary corporate action to authorize the
execution, delivery
and performance of this Agreement by it, and has the power and
authority to
execute, deliver and perform this Agreement and all transactions
contemplated
hereby.
(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 (A) laws relating to bankruptcy, insolvency,
fraudulent
transfer, reorganization, receivership or moratorium, (B) other
laws relating to
or affecting the rights of creditors generally, or (C) general
equity principles
(regardless of whether such enforcement is considered in a
proceeding in equity
or at law).
(c) The execution and delivery of this Agreement by the Purchaser
and
the Purchaser's performance and compliance with the terms of this
Agreement will
not (A) violate the Purchaser's articles of incorporation or
bylaws, (B) violate
any law or regulation or any administrative decree or order to
which it is
subject or (C) constitute a default (or an event which, with notice
or lapse of
time, or both, would constitute a default) under, or result in the
breach of,
any material contract, agreement or other instrument to which the
Purchaser is a
party or by which the Purchaser is bound, 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.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or 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
11
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).
(e) Except as may be required under federal or state securities
laws
(and which will be obtained on a timely basis), no consent,
approval,
authorization or order of, registration or filing with, or notice
to, any
governmental authority or court, is required, under federal or
state law, for
the execution, delivery and performance by the Purchaser of, or
compliance by
the Purchaser with, this Agreement, or the consummation by the
Purchaser of any
transaction described in this Agreement.
(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
consideration
consisting of a cash amount equal to the aggregate Purchase
Consideration.
(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
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 other governmental agency or body, 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 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 Sidley Austin Brown
& Wood LLP on the
Closing Date. The Closing shall be subject to each of the following
conditions:
(a) All of the representations and warranties of the Seller set
forth
in or made pursuant to Sections 3(a) and 3(b) of this Agreement and
all of the
representations and warranties of the Purchaser set forth in
Section 4 of this
Agreement shall be true and correct in all material respects as of
the Closing
Date;
(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and
acceptable to the
Purchaser, the Seller, the Underwriters 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 shall have delivered and released to the Trustee (or
a
Custodian on its behalf) and the Master Servicer, respectively, all
documents
represented to have been or required to be delivered to the Trustee
and the
Master Servicer pursuant to Section 2 of this Agreement;
12
(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 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
the Purchaser or otherwise pursuant to this Agreement as of the
Closing Date;
(f) One or more letters from the independent accounting firm of
Ernst
& Young LLP and PricewaterhouseCoopers LLP, in form
satisfactory to the
Purchaser and relating to certain information regarding the
Mortgage Loans and
Certificates as set forth in the Prospectus and Prospectus
Supplement,
respectively; and
(g) The Seller shall have executed and delivered concurrently
herewith
that certain Indemnification Agreement, dated as of June 21, 2005,
among the
Seller, Merrill Lynch Mortgage Lending, Inc., PNC Bank, National
Association,
the Purchaser, the Underwriters and the Initial Purchasers. Both
parties agree
to use their best reasonable 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) (i) This Agreement duly executed by the Purchaser and the
Seller,
(ii) the Pooling and Servicing Agreement duly executed by the
parties thereto
and (iii) the Servicing Rights Purchase Agreement, dated as of June
29, 2005,
between the Seller and Midland Loan Services, Inc. duly executed by
such
parties;
(b) An officer's certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and
upon which the
Purchaser, the Underwriters and the Initial Purchasers may rely, to
the effect
that: (i) the representations and warranties of the Seller in this
Agreement are
true and correct in all material respects at and as of the Closing
Date with the
same effect as if made on such date; and (ii) 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 an officer of the Seller (signed
in
his/her capacity as an officer), dated the Closing Date, and upon
which the
Purchaser may rely, to the effect that each individual who, as an
officer or
representative of the Seller, signed this Agreement, the
Indemnification
Agreement or any other document or certificate delivered on or
before the
Closing Date in connection with the transactions contemplated
herein or therein,
was at the respective times of such signing and delivery, and is as
of the
Closing Date, duly elected or appointed, qualified and acting as
such officer or
representative, and the signatures of such persons appearing on
such documents
and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller (signed
in
his/her capacity as an officer), dated the Closing Date, and upon
which the
Purchaser, the Underwriters
13
and Initial Purchasers may rely, to the effect that (i) such
officer has
carefully examined the Specified Portions (as defined below) of the
Prospectus
Supplement and nothing has come to his attention that would lead
him to believe
that the Specified Portions of the Prospectus Supplement, as of the
date of the
Prospectus Supplement or as of the Closing Date, included or
include any untrue
statement of a material fact relating to the Mortgage Loans or
omitted or omit
to state therein a material fact necessary in order to make the
statements
therein relating to the Mortgage Loans, in light of the
circumstances under
which they were made, not misleading, and (ii) such officer has
carefully
examined the Specified Portions of the Private Placement
Memorandum, dated as of
June 21, 2005 (the "Memorandum") (pursuant to which certain classes
of the
Private Certificates are being privately offered) and nothing has
come to his
attention that would lead him to believe that the Specified
Portions of the
Memorandum, as of the date thereof or as of the Closing Date,
included or
include any untrue statement of a material fact relating to the
Mortgage Loans
or omitted or omit to state therein a material fact necessary in
order to make
the statements therein related to the Mortgage Loans, in the light
of the
circumstances under which they were made, not misleading. The
"Specified
Portions" of the Prospectus Supplement shall consist of Annex A-1
thereto,
entitled "Certain Characteristics of the Mortgage Loans" (insofar
as the
information contained in Annex A-1 relates to the Mortgage Loans
sold by the
Seller hereunder), Annex A-2 to the Prospectus Supplement, entitled
"Certain
Statistical Information Regarding the Mortgage Loans" (insofar as
the
information contained in Annex A-2 relates to the Mortgage Loans
sold by the
Seller hereunder), Annex B to the Prospectus Supplement entitled
"Certain
Characteristics Regarding Multifamily Properties" (insofar as the
information
contained in Annex B relates to the Mortgage Loans sold by the
Seller
hereunder), Annex C to the Prospectus Supplement, entitled
"Structural and
Collateral Term Sheet" (insofar as the information contained in
Annex C relates
to the Mortgage Loans sold by the Seller hereunder), the diskette
which
accompanies the Prospectus Supplement (insofar as such diskette is
consistent
with Annex A-1, Annex A-2 and/or Annex B), and the following
sections of the
Prospectus Supplement (only to the extent that any such information
relates to
the Seller or the Mortgage Loans sold by the Seller hereunder and
exclusive of
any statements in such sections that purport to describe the
servicing and
administration provisions of the Pooling and Servicing Agreement
and exclusive
of aggregated numerical information that includes the Other
Mortgage Loans):
"Summary of Prospectus Supplement--Relevant Parties--Mortgage Loan
Sellers,"
"Summary of Prospectus Supplement--The Mortgage Loans And The
Mortgaged Real
Properties," "Risk Factors" and "Description of the Mortgage Pool".
The
"Specified Portions" of the Memorandum shall consist of the
Specified Portions
of the Prospectus Supplement (as attached as an exhibit to the
Memorandum);
(e) Each of: (i) the resolutions of the Seller's board of directors
or
a committee thereof authorizing the Seller's entering into the
transactions
contemplated by this Agreement, (ii) the certificate of
incorporation and bylaws
of the Seller, and (iii) a certificate of good standing of the
Seller issued by
the State of California not earlier than thirty (30) days prior to
the Closing
Date;
(f) A written opinion of counsel for the Seller relating to
corporate
and enforceability matters (which opinion may be from in-house
counsel, outside
counsel or a combination thereof), reasonably satisfactory to the
Purchaser, its
counsel and the Rating Agencies, dated the Closing Date and
addressed to the
Purchaser, the Trustee, the Underwriters,
14
the Initial Purchasers and each of the Rating Agencies, together
with such other
written opinions, including as to insolvency matters, as may be
required by the
Rating Agencies; and
(g) Such further certificates, opinions and documents as the
Purchaser
may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated, both
the Seller and the Purchaser shall pay their respective share of
the transaction
expenses incurred in connection with the transactions contemplated
herein as set
forth in the closing statement prepared by the Purchaser and
delivered to and
approved by the Seller on or before the Closing Date, and in 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.
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 of this Agreement 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 UCC of
the applicable jurisdiction; (ii) the conveyance provided for in
Section 2 of
this Agreement 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 (other than investment earnings required by Section
3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest
Shortfalls), from
time to time held or invested in the Collection Account, the
Distribution
Account or, if established, the REO Account whether in the form of
cash,
instruments, securities or other property; (iii) the assignment to
the Trustee
of the interest of the Purchaser as contemplated by Section 1 of
this Agreement
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 UCC of the
applicable
jurisdiction; and (v) notifications to persons (other than the
Trustee) holding
such property, and acknowledgments, receipts or confirmations from
persons
(other than the Trustee) holding such property, shall be deemed
notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured
party for the
purpose of perfecting such security interest under applicable law.
The Seller
and the Purchaser shall, to the extent consistent with this
Agreement, take such
actions as may be necessary to ensure that, if this Agreement were
deemed to
create a security interest in the Mortgage Loans, such security
interest would
be deemed to be a perfected security interest of first priority
under applicable
law and will be maintained as such throughout the term of this
Agreement and the
Pooling and Servicing
15
Agreement. The Seller does hereby consent to the filing by the
Purchaser of
financing statements relating to the transactions contemplated
hereby without
the signature of the Seller.
SECTION 9. Notices. All notices, copies, requests, consents,
demands
and other communications required hereunder shall be in writing and
sent by
facsimile or delivered to the intended recipient at the "Address
for Notices"
specified beneath its name on the signature pages hereof or, as to
either party,
at such other address as shall be designated by such party in a
notice hereunder
to the other party. Except as otherwise provided in this Agreement,
all such
communications shall be deemed to have been duly given when
transmitted by
facsimile 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
that 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 that
obtains the principal relief it has sought, whether by compromise
settlement or
judgment. If
16
the party that 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 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, the Underwriters (as intended third party beneficiaries
hereof), the
Initial Purchasers (also as intended third party beneficiaries
hereof) and their
permitted successors and assigns. This Agreement is enforceable by
the
Underwriters, the Initial Purchasers and the other third party
beneficiaries
hereto in all respects to the same extent as if they had been
signatories
hereof.
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 hereto against whom such
waiver or
modification is sought to be enforced. The Seller's obligations
hereunder shall
in no way be expanded, changed or otherwise affected by any
amendment of or
modification to the Pooling and Servicing Agreement, including,
without
limitation, any defined terms therein, unless the Seller has
consented to such
amendment or modification in writing.
SECTION 18. Accountants' Letters. The parties hereto shall
cooperate
with Ernst & Young LLP in making available all information and
taking all steps
reasonably necessary to permit such accountants to deliver the
letters required
by the Underwriting Agreement and the Certificate Purchase
Agreement.
SECTION 19. Knowledge. Whenever a representation or warranty or
other
statement in this Agreement (including, without limitation,
Schedule I hereto)
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. Cross-Collateralized Mortgage Loans. Each Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of
reference,
the Mortgaged Property that relates or corresponds to any of the
Mortgage Loans
in a Crossed Loan Group shall be the property identified in the
Mortgage Loan
Schedule as corresponding thereto. The provisions of
17
this Agreement, including, without limitation, each of the
representations and
warranties set forth in Schedule I hereto and each of the
capitalized terms used
herein but defined in the Pooling and Servicing Agreement, shall be
interpreted
in a manner consistent with this Section 20. In addition, if there
exists with
respect to any Crossed Loan Group only one original of any document
referred to
in the definition of "Mortgage File" in this Agreement and covering
all the
Mortgage Loans in such Crossed Loan Group, the inclusion of the
original of such
document in the Mortgage File for any of the Mortgage Loans in such
Crossed Loan
Group shall be deemed an inclusion of such original in the Mortgage
File for
each such Mortgage Loan.
18
IN WITNESS WHEREOF, the Seller and the Purchaser have caused their
names to be signed hereto by their respective duly authorized
officers as of the
date first above written.
SELLER
COUNTRYWIDE COMMERCIAL REAL ESTATE
FINANCE, INC.
By: /s/ Marlyn A. Marincas
-----------------------------------
Name: Marlyn A. Marincas
Title: Senior Vice President
Address for Notices:
Telecopier No.: (818) 225 6342
Telephone No.: (818) 225-4032
PURCHASER
MERRILL LYNCH MORTGAGE INVESTORS, INC.
By: /s/ George H. Kok
-----------------------------------
Name: George H. Kok
Title: Vice President
Address for Notices:
Merrill Lynch Mortgage Investors, Inc.
Four World Financial Center
250 Vesey Street
New York, New York 10080
Telecopier No.: (212) 449-3658
Telephone No.: (212) 449-3611
Attention: David M. Rodgers
with a copy to:
Robert M. Denicola, Esq.
Merrill Lynch Mortgage Investors, Inc.
Four World Financial Center
250 Vesey Street
New York, New York 10080
Telecopier No.: (212) 449-0265
Telephone No.: (212) 449-2916
COUNTRYWIDE MORTGAGE LOAN PURCHASE AGREEMENT
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a Mortgaged
Property
shall mean the value of such Mortgaged Property as determined by
the appraisal
(and subject to the assumptions set forth in the appraisal)
performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in the
Mortgage
Loan Schedule with respect to the Mortgage Loans is true and
correct in all
material respects (and contains all the items listed in the
definition of
"Mortgage Loan Schedule") as of the dates of the information set
forth therein
or, if not set forth therein, and in all events no earlier than, as
of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the transfer
of
the Mortgage Loans to the Purchaser, the Seller had good title to,
and was the
sole owner of, each Mortgage Loan. The Seller has full right, power
and
authority to transfer and assign each Mortgage Loan to or at the
direction of
the Purchaser free and clear of any and all pledges, liens,
charges, security
interests, participation interests and/or other interests and
encumbrances
(except for certain servicing rights as provided in the Pooling and
Servicing
Agreement, any permitted subservicing agreements and servicing
rights purchase
agreements pertaining thereto). The Seller has validly and
effectively conveyed
to the Purchaser all legal and beneficial interest in and to each
Mortgage Loan
free and clear of any pledge, lien, charge, security interest or
other
encumbrance (except for certain servicing rights as provided in the
Pooling and
Servicing Agreement, any permitted subservicing agreements and
servicing rights
purchase agreements pertaining thereto); provided that recording
and/or filing
of various transfer documents are to be completed after the Closing
Date as
contemplated hereby and by the Pooling and Servicing Agreement. The
sale of the
Mortgage Loans to the Purchaser or its designee does not require
the Seller to
obtain any governmental or regulatory approval or consent that has
not been
obtained. Each Mortgage Note is, or shall be as of the Closing
Date, properly
endorsed to the Purchaser or its designee and each such endorsement
is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and interest
under any Mortgage Loan was 30 days or more past due as of the Due
Date for such
Mortgage Loan in June 2005 without giving effect to any applicable
grace period,
nor was any such payment 30 days or more delinquent in the
twelve-month period
immediately preceding the Due Date for such Mortgage Loan in June
2005, without
giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and delivered
in
connection with each Mortgage Loan constitutes a valid and, subject
to the
limitations and exceptions set forth in representation 13 below,
enforceable
first priority lien upon the related Mortgaged Property, prior to
all other
liens and encumbrances, and there are no liens and/or encumbrances
that are pari
passu with the lien of such Mortgage, in any event subject,
however, to the
following (collectively, the "Permitted Encumbrances"): (a) the
lien for current
real estate taxes, ground rents, water charges, sewer rents and
assessments not
yet delinquent or accruing
interest or penalties; (b) covenants, conditions and restrictions,
rights of
way, easements and other matters that are of public record and/or
are referred
to in the related lender's title insurance policy (or, if not yet
issued,
referred to in a pro forma title policy or a "marked-up" commitment
binding upon
the title insurer); (c) exceptions and exclusions specifically
referred to in
such lender's title insurance policy (or, if not yet issued,
referred to in a
pro forma title policy or "marked-up" commitment binding upon the
title
insurer); (d) other matters to which like properties are commonly
subject; (e)
the rights of tenants (as tenants only) under leases (including
subleases)
pertaining to the related Mortgaged Property; (f) if such Mortgage
Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for
another Mortgage Loan contained in the same Crossed Group; and (g)
if the
related Mortgaged Property consists of one or more units in a
condominium, the
related condominium declaration. The Permitted Encumbrances do not,
individually
or in the aggregate, materially interfere with the security
intended to be
provided by the related Mortgage, the current principal use of the
related
Mortgaged Property, the Value of the Mortgaged Property or the
current ability
of the related Mortgaged Property to generate income sufficient to
service such
Mortgage Loan. The related assignment of such Mortgage executed and
delivered in
favor of the Trustee is in recordable form (but for insertion of
the name and
address of the assignee and any related recording information which
is not yet
available to the Seller) and constitutes a legal, valid, binding
and, subject to
the limitations and exceptions set forth in representation 13
below, enforceable
assignment of such Mortgage from the relevant assignor to the
Trustee.
5. Assignment of Leases and Rents. There exists, as part of the
related Mortgage File, an Assignment of Leases (either as a
separate instrument
or as part of the Mortgage) that relates to and was delivered in
connection with
each Mortgage Loan and that establishes and creates a valid,
subsisting and,
subject to the limitations and exceptions set forth in
representation 13 below,
enforceable first priority lien on and security interest in,
subject to
applicable law, the property, rights and interests of the related
Mortgagor
described therein, except for Permitted Encumbrances and except
that a license
may have been granted to the related Mortgagor to exercise certain
rights and
perform certain obligations of the lessor under the relevant lease
or leases,
including, without limitation, the right to operate the related
leased property
so long as no event of default has occurred under such Mortgage
Loan; and each
assignor thereunder has the full right to assign the same. The
related
assignment of any Assignment of Leases not included in a Mortgage,
executed and
delivered in favor of the Trustee is in recordable form (but for
insertion of
the name of the assignee and any related recording information
which is not yet
available to the Seller), and constitutes a legal, valid, binding
and, subject
to the limitations and exceptions set forth in representation 13
below,
enforceable assignment of such Assignment of Leases from the
relevant assignor
to the Trustee. The related Mortgage or related Assignment of
Leases, subject to
applicable law, provides for the appointment of a receiver for the
collection of
rents or for the related mortgagee to enter into possession to
collect the rents
or provides for rents to be paid directly to the related mortgagee,
if there is
an event of default. No person other than the related Mortgagor
owns any
interest in any payments due under the related leases on which the
Mortgagor is
the landlord, covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case of each
Mortgage Loan, except by a written instrument which has been
delivered to the
Purchaser or its designee as a part of the related Mortgage File,
(a) the
related Mortgage (including any
I-2
amendments or supplements thereto included in the related Mortgage
File) has not
been impaired, waived, modified, altered, satisfied, canceled,
subordinated or
rescinded, (b) neither the related Mortgaged Property nor any
material portion
thereof has been released from the lien of such Mortgage and (c)
the related
Mortgagor has not been released from its obligations under such
Mortgage, in
whole or in material part. With respect to each Mortgage Loan,
since the later
of (a) May 31, 2005 and (b) the closing date of such Mortgage Loan,
the Seller
has not executed any written instrument that (i) impaired,
satisfied, canceled,
subordinated or rescinded such Mortgage Loan, (ii) waived, modified
or altered
any material term of such Mortgage Loan, (iii) released the
Mortgaged Property
or any material portion thereof from the lien of the related
Mortgage, or (iv)
released the related Mortgagor from its obligations under such
Mortgage Loan in
whole or material part. For avoidance of doubt, the preceding
sentence does not
relate to any release of escrows by the Seller or a servicer on its
behalf.
7. Condition of Property; Condemnation. In the case of each
Mortgage
Loan, except as set forth in an engineering report prepared by an
independent
engineering consultant in connection with the origination of such
Mortgage Loan,
the related Mortgaged Property is, to the Seller's knowledge, in
good repair and
free and clear of any damage that would materially and adversely
affect its
value as security for such Mortgage Loan (except in any such case
where an
escrow of funds, letter of credit or insurance coverage exists
sufficient to
effect the necessary repairs and maintenance). As of the date of
origination of
the Mortgage Loan, there was no proceeding pending for the
condemnation of all
or any material part of the related Mortgaged Property. As of the
Closing Date,
the Seller has not received notice and has no knowledge of any
proceeding
pending for the condemnation of all or any material portion of the
Mortgaged
Property securing any Mortgage Loan. As of the date of origination
of each
Mortgage Loan and, to the Seller's knowledge, as of the date
hereof, (a) none of
the material improvements on the related Mortgaged Property
encroach upon the
boundaries and, to the extent in effect at the time of
construction, do not
encroach upon the building restriction lines of such property, and
none of the
material improvements on the related Mortgaged Property encroached
over any
easements, except, in each case, for encroachments that are insured
against by
the lender's title insurance policy referred to in representation 8
below or
that do not materially and adversely affect the Value or current
use of such
Mortgaged Property and (b) no improvements on adjoining properties
encroached
upon such Mortgaged Property so as to materially and adversely
affect the Value
of such Mortgaged Property, except those encroachments that are
insured against
by the lender's title insurance policy referred to in
representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a Mortgage
Loan
is covered by an American Land Title Association (or an equivalent
form of)
lender's title insurance policy (the "Title Policy") (or, if such
policy has yet
to be issued, by a pro forma policy or a "marked up" commitment
binding on the
title insurer) in the original principal amount of such Mortgage
Loan after all
advances of principal, insuring that the related Mortgage is a
valid first
priority lien on such Mortgaged Property, subject only to the
Permitted
Encumbrances, except that in the case of a Mortgage Loan as to
which the related
Mortgaged Property is made up of more than one parcel of property,
each of which
is secured by a separate Mortgage, such Mortgage (and therefore the
related
Title Policy) may be in an amount less than the original principal
amount of the
Mortgage Loan, but is not less than the allocated amount of subject
parcel
constituting a portion of the related Mortgaged Property. Such
Title Policy (or,
if
I-3
it has yet to be issued, the coverage to be provided thereby) is in
full force
and effect, all premiums thereon have been paid, no material claims
have been
made thereunder and no claims have been paid thereunder. No holder
of the
related Mortgage has done, by act or omission, anything that would
materially
impair the coverage under such Title Policy. Immediately following
the transfer
and assignment of the related Mortgage Loan to the Trustee, such
Title Policy
(or, if it has yet to be issued, the coverage to be provided
thereby) inures to
the benefit of the Trustee as sole insured without the consent of
or notice to
the insurer. Such Title Policy contains no exclusion for whether,
or it
affirmatively insures (unless the related Mortgaged Property is
located in a
jurisdiction where such affirmative insurance is not available)
that, (a) the
related Mortgaged Property has access to a public road, and (b) the
area shown
on the survey, if any, reviewed or prepared in connection with the
origination
of the related Mortgage Loan is the same as the property legally
described in
the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have been fully
disbursed (except in those cases where the full amount of the
Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or
reserve accounts
documented as part of the Mortgage Loan documents and the rights to
which are
transferred to the Trustee, pending the satisfaction of certain
conditions
relating to leasing, repairs or other matters with respect to the
related
Mortgaged Property), and there is no obligation for future advances
with respect
thereto.
10. Mortgage Provisions. The Mortgage Loan documents for each
Mortgage
Loan, together with applicable state law, contain customary and,
subject to the
limitations and exceptions set forth in representation 13 below,
enforceable
provisions such as to render the rights and remedies of the holder
thereof
adequate for the practical realization against the related
Mortgaged Property of
the principal benefits of the security intended to be provided
thereby,
including, without limitation, foreclosure or similar proceedings
(as applicable
for the jurisdiction where the related Mortgaged Property is
located). None of
the Mortgage Loan documents contains any provision that expressly
excuses the
related Mortgagor from obtaining and maintaining insurance coverage
for acts of
terrorism.
11. Trustee under Deed of Trust. If the Mortgage for any Mortgage
Loan
is a deed of trust, then (a) a trustee, duly qualified under
applicable law to
serve as such, has either been properly designated and currently so
serves or
may be substituted in accordance with the Mortgage and applicable
law, and (b)
no fees or expenses are payable to such trustee by the Seller, the
Purchaser or
any transferee thereof except in connection with a trustee's sale
after default
by the related Mortgagor or in connection with any full or partial
release of
the related Mortgaged Property or related security for such
Mortgage Loan.
12. Environmental Conditions. Except in the case of the Mortgaged
Properties identified on Annex B hereto (as to which properties the
only
environmental investigation conducted in connection with the
origination of the
related Mortgage Loan related to asbestos-containing materials and
lead-based
paint), (a) an environmental site assessment meeting ASTM standards
and covering
all environmental hazards typically assessed for similar properties
including
use, type and tenants of the related Mortgaged Property, a
transaction screen
meeting ASTM standards or an update of a previously conducted
environmental site
assessment (which update may have been performed pursuant to a
database update),
was performed by an independent third-party environmental
consultant (licensed
to the extent required by applicable
I-4
state law) with respect to each Mortgaged Property securing a
Mortgage Loan in
connection with the origination of such Mortgage Loan, (b) the
report of each
such assessment, update or screen, if any (an "Environmental
Report"), is dated
no earlier than (or, alternatively, has been updated within) twelve
(12) months
prior to the date hereof, (c) a copy of each such Environmental
Report has been
delivered to the Purchaser, and (d) either: (i) no such
Environmental Report, if
any, reveals that as of the date of the report there is a material
violation of
applicable environmental laws with respect to any known
circumstances or
conditions relating to the related Mortgaged Property; or (ii) if
any such
Environmental Report does reveal any such circumstances or
conditions with
respect to the related Mortgaged Property and the same have not
been
subsequently remediated in all material respects, then one or more
of the
following are true--(A) one or more parties not related to the
related Mortgagor
and collectively having financial resources reasonably estimated to
be adequate
to cure the violation was identified as the responsible party or
parties for
such conditions or circumstances, and such conditions or
circumstances do not
materially impair the Value of the related Mortgaged Property, (B)
the related
Mortgagor was required to provide additional security reasonably
estimated to be
adequate to cure the violations and/or to obtain and, for the
period
contemplated by the related Mortgage Loan documents, maintain an
operations and
maintenance plan, (C) the related Mortg
