EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of June 21, 2005
(this
"Agreement"), is entered into between PNC Bank, National
Association (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 $301,233,846 (the "PNC Bank
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
PNC Bank
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) 103.5079% of the PNC Bank Mortgage Loan Balance as of
the Cut-off
Date, plus (ii) $1,259,951, which amount represents the amount of
interest
accrued on the PNC Bank 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
$218,782.09) 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 retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan,
promptly (and in
any event within 90 days following the later of the Closing Date
and the
delivery of each Mortgage, Assignment of Leases, recordable
document and UCC
Financing Statement to the Trustee) cause to be submitted for
recording or
filing, as the case may be, in the appropriate public office for
real property
records or UCC Financing Statements, each assignment of Mortgage,
assignment of
Assignment of Leases and any other recordable documents relating to
each such
Mortgage Loan in favor of the Trustee that is referred to in clause
(iv) of the
definition of "Mortgage File" and each UCC Financing Statement
assignment in
favor of the Trustee and that is referred to in clause (viii) of
the definition
of "Mortgage File." Each such assignment and UCC Financing
Statement assignment
shall reflect that the recorded original should be returned by the
public
recording office to the Trustee following recording, and each such
assignment
and UCC Financing Statement assignment shall reflect that the file
copy thereof
should be returned to the Trustee following filing; provided, that
in those
instances where the public recording office
4
retains the original assignment of Mortgage or assignment of
Assignment of
Leases, the Recording/Filing Agent shall obtain therefrom a
certified copy of
the recorded original. If any such document or instrument is lost
or returned
unrecorded or unfiled, as the case may be, because of a defect
therein, then the
Seller shall prepare a substitute therefor or cure such defect or
cause such to
be done, as the case may be, and the Seller shall deliver such
substitute or
corrected document or instrument to the Trustee (or, if the
Mortgage Loan is
then no longer subject to the Pooling and Servicing Agreement, to
the then
holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of all
such
recording, filing and delivery contemplated in the preceding
paragraph,
including, without limitation, any costs and expenses that may be
incurred by
the Trustee in connection with any such recording, filing or
delivery performed
by the Trustee at the Seller's request and the fees of the
Recording/Filing
Agent.
(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 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:
5
(i) The Seller is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States
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 charter 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
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 charter, 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
6
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
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
7
(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 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
8
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 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
9
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
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
10
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 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
11
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 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
12
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;
(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., Countrywide
Commercial Real Estate
Finance, Inc., 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:
13
(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 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
14
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 charter and bylaws of the
Seller, and
(iii) a certificate of corporate existence of the Seller issued by
the Office of
the Comptroller of the Currency 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, 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
15
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
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
