Exhibit 99.1
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of August 11, 2005
(this "Agreement"), is entered into between Merrill Lynch Mortgage
Lending, 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 August 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"), LNR
Partners, Inc. as
special servicer (in such capacity, the "Special Servicer"),
LaSalle Bank
National Association as trustee (the "Trustee") and ABN AMRO Bank
N.V. as fiscal
agent. 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
August 11, 2005 (the "Underwriting Agreement"), with Merrill Lynch,
Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), for itself and
as representative
of Countrywide Securities Corporation ("Countrywide"), PNC Capital
Markets, Inc.
("PNC"), IXIS Securities North America Inc. ("IXIS Securities") and
Wachovia
Capital Markets, LLC ("Wachovia"; Merrill Lynch, Countrywide, PNC,
IXIS
Securities and Wachovia, 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 August
11, 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 $1,084,720,719 (the "Merrill
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 Merrill Mortgage Loan Balance, together with the
aggregate
principal balance of the Other Mortgage Loans as of the Cut-off
Date (after
giving effect to any payments due on or before such date, whether
or not such
payments are received), is expected to equal an aggregate principal
balance (the
"Cut-off Date Pool Balance") of $2,056,750,308 (subject to a
variance of plus or
minus 5%). The purchase and sale of the Mortgage Loans shall take
place on
August 24, 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)
100.19263% of the
Merrill Mortgage Loan Balance as of the Cut-off Date, plus (ii)
$3,658,713,
which amount represents the amount of interest accrued on the
Merrill 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.
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. 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
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
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"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. The
Mortgage File with respect to each Mortgage Loan that is a Serviced
Trust
Mortgage Loan shall contain the following documents:
(i) (A) 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
LaSalle Bank National Association, as trustee for the registered
holders of
Merrill Lynch Mortgage Trust 2005-CIP1, Commercial Mortgage
Pass-Through
Certificates, Series 2005-CIP1, or in blank, and (B) in the case of
a Loan
Combination, a copy of the executed Mortgage Note for each related
Non-Trust Loan;
(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
LaSalle
Bank National Association, as trustee for the registered holders of
Merrill
Lynch Mortgage Trust 2005-CIP1, Commercial Mortgage Pass-Through
Certificates, Series 2005-CIP1 (or, in the case of a Loan
Combination, in
favor of LaSalle Bank National Association, as trustee for the
registered
holders of Merrill Lynch Mortgage Trust 2005-CIP1, Commercial
Mortgage
Pass-Through Certificates, Series 2005-CIP1, and in its capacity as
lead
lender on behalf of the holder(s) of the related Non-Trust
Loan(s)), 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 LaSalle Bank National Association, as trustee
for the
registered holders of Merrill Lynch Mortgage Trust 2005-CIP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-CIP1 (or, in the
case of a
Loan Combination, in favor of LaSalle Bank National Association, as
trustee
for the registered holders of Merrill Lynch Mortgage Trust
2005-CIP1,
Commercial Mortgage Pass-Through Certificates, Series 2005-CIP1,
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and in its capacity as lead lender on behalf of the holder of the
related
Non-Trust Loan(s)), or in blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where
the terms
or provisions of the Mortgage or Mortgage Note have been
consolidated or
modified or the subject Mortgage Loan has been assumed;
(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 LaSalle Bank National Association,
as
trustee for the registered holders of Merrill Lynch Mortgage Trust
2005-CIP1, Commercial Mortgage Pass-Through Certificates, Series
2005-CIP1,
as assignee (or, in the case of a Loan Combination, in favor of
LaSalle
Bank National Association, as trustee for the registered holders of
Merrill
Lynch Mortgage Trust 2005-CIP1, Commercial Mortgage Pass-Through
Certificates, Series 2005-CIP1, and in its capacity as lead lender
on
behalf of the holder of the related Non-Trust Loan(s)), 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 Mortgage File with respect to the Westchester Trust Mortgage
Loan
shall contain the following documents:
(i) the original executed Mortgage Note for such Mortgage Loan
including any power of attorney related to the execution thereof
(or a lost
note affidavit and
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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 LaSalle Bank National
Association, as
trustee for the registered holders of Merrill Lynch Mortgage Trust
2005-CIP1, Commercial Mortgage Pass-Through Certificates, Series
2005-CIP1,
or in blank;
(ii) an executed copy of the Westchester Intercreditor Agreement;
and
(iii) an executed copy of the MLMT Series 2005-MCP1 Pooling and
Servicing Agreement.
The foregoing Mortgage File delivery requirement shall be subject
to
Section 2.01(c) of the Pooling and Servicing Agreement.
The Seller hereby further represents and warrants that with respect
to
the Westchester Trust Mortgage Loan, it has delivered to the MLMT
Series
2005-MCP1 Trustee the documents constituting the "Mortgage File"
within the
meaning of the MLMT Series 2005-MCP1 Pooling and Servicing
Agreement in
connection with its sale of the Westchester Pari Passu Non-Trust
Loan to the
Depositor.
(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 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 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,
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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:
(i) The Seller is a corporation duly organized, validly existing
and
in good standing under the laws of the State of Delaware 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,
6
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 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
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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 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 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
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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.
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
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. 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,
9
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 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
10
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 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
11
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 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
12
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 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
13
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, 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 August 11,
2005, among the
Seller, Countrywide Commercial Real Estate Finance, Inc., IXIS Real
Estate
Capital 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
August 24, 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;
14
(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 August 11, 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" and
"Summary of Prospectus Supplement--Relevant Parties--Merrill Lynch
Mortgage
Trust Series 2005-MCP1 Trustee, Master Servicer and Special
Servicer" and "--The
Westchester Controlling Subordinate Noteholder and Westchester Pari
Passu
Non-Trust Loan Noteholder"; "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 Delaware not earlier than thirty (30) days prior to
the Closing
Date;
15
(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 an
affiliate 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
16
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 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
17
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
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.
18
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 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.
19
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
MERRILL LYNCH MORTGAGE LENDING, INC.
By: /s/ David M. Rodgers
-------------------------------------
Name:
David M. Rodgers
Title: Executive Vice President,
Chief Officer in Charge of
Commercial Mortgage
Securitization
Address for Notices:
Merrill Lynch Mortgage Lending, 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
PURCHASER
MERRILL LYNCH MORTGAGE INVESTORS,
INC.
By: /s/ David M. Rodgers
-------------------------------------
Name:
David M. Rodgers
Title: Executive Vice President,
Chief Officer in Charge of
Commercial Mortgage
Securitization
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
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 August 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
August 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 (or, in the case of the Westchester Trust
Mortgage Loan, in
favor of the MLMT Series 2005-MCP1 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 (or, in the case of the
Westchester Trust
Mortgage Loan, in favor of the MLMT Series 2005-MCP1 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 (or, in the case of the
Westchester Trust
Mortgage Loan, in favor of the MLMT Series 2005-MCP1 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 (or, in the case of the
Westchester
Trust Mortgage Loan, in favor of the MLMT Series 2005-MCP1
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
I-2
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 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) August 1, 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
I-3
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 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 (or,
in the case of
the Westchester Trust Mortgage Loan, in favor of the MLMT Series
2005-MCP1
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 (in the case of the Westchester Trust
Mortgage Loan,
subject to the rights of the MLMT Series 2005-MCP1 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, judicial or non-judicial 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 or will become 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.
I-4
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 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 Mortgagor, or
other responsible
party, provided a "no further action" letter or other evidence that
would be
acceptable to a reasonably prudent commercial mortgage lender, that
applicable
federal, state or local governmental authorities had no current
intention of
taking any action, and are not requiring any action, in respect of
such
conditions or circumstances, (D) such conditions or circumstances
were
investigated further and based upon such additional investigation,
a qualified
environmental consultant recommended no further investigation or
remediation,
(E) the expenditure of funds reasonably estimated to be necessary
to effect such
remediation is not greater than 2% of the outstanding principal
balance of the
related Mortgage Loan, (F) there exists an escrow of funds
reasonably estimated
to be sufficient for purposes of effecting such remediation, (G)
the related
Mortgaged Property is insured under a policy of insurance, subject
to certain
per occurrence and aggregate limits and a deductible, against
certain losses
arising from such circumstances and conditions or (H) a responsible
party
provided a guaranty or indemnity to the related Mortgagor to cover
the costs of
any required investigation, testing, monitoring or remediation and,
as of the
date of origination of the related Mortgage Loan, such responsible
party had
financial resources reasonably estimated to be adequate to cure the
subject
violation in all material respects. To the Seller's actual
knowledge and without
inquiry beyond the related Environmental Report, there are no
significant or
material circumstances or conditions with respect to such Mortgaged
Property not
revealed in any such Environmental Report, where obtained, or in
any Mortgagor
questionnaire delivered to the Seller in connection with the issue
of any
related environmental insurance policy, if applicable, that would
require
I-5
investigation or remediation by the related Mortgagor under, or
otherwise be a
material violation of, any applicable environmental law. The
Mortgage Loan
documents for each Mortgage Loan require the related Mortgagor to
comply in all
material respects with all applicable federal, state and local
environmental
laws and regulations. Each of the Mortgage Loans identified on
Annex C hereto is
covered by a secured creditor impaired property environmental
insurance policy
and each such policy is noncancellable during its term, is in the
amount at
least equal to 125% of the principal balance of the Mortgage Loan,
has a term
ending no sooner than the date which is five years after the
maturity date of
the Mortgage Loan to which it relates and either does not provide
for a
deductible or the deductible amount is held in escrow and all
premiums have been
paid in full. Each Mortgagor represents and warrants in the related
Mortgage
Loan documents that except as set forth in certain environmental
reports and to
its knowledge it has not used, caused or permitted to exist and
will not use,
cause or permit to exist on the related Mortgaged Property any
hazardous
materials in any manner which violates federal, state or local
laws, ordinances,
regulations, orders, directives or policies governing the use,
storage,
treatment, transportation, manufacture, refinement, handling,
production or
disposal of hazardous materials. The related Mortgagor (or
affiliate thereof)
has agreed to indemnify, defend and hold the Seller and its
successors and
assigns harmless from and against any and all losses, liabilities,
damages,
injuries, penalties, fines, out-of-pocket expenses and claims of
any kind
whatsoever (including attorneys' fees and costs) paid, incurred or
suffered by
or asserted against, any such party resulting from a breach of
environmental
representations, warranties or covenants given by the Mortgagor in
connection
with such Mortgage Loan.
13. Loan Document Status. Each Mortgage Note, Mortgage, and each
other
agreement executed by or on behalf of the related Mortgagor with
respect to each
Mortgage Loan is the legal, valid and binding obligation of the
maker thereof
(subject to any non-recourse provisions contained in any of the
foregoing
agreements and any applicable state anti-deficiency or market value
limit
deficiency legislation), enforceable in accordance with its terms,
except as
such enforcement may be limited by (i) bankruptcy, insolvency,
reorganization,
receivership, fraudulent transfer and conveyance or other similar
laws affecting
the enforcement of creditors' rights generally, (ii) general
principles of
equity (regardless of whether such enforcement is considered in a
proceeding in
equity or at law) and (iii) public policy considerations underlying
applicable
securities laws, to the extent that such public policy
considerations limit the
enforceability of provisions that purport to provide
indemnification from
liabilities under applicable securities laws, and except that
certain provisions
in such loan documents may be further limited or rendered
unenforceable by
applicable law, but (subject to the limitations set forth in the
foregoing
clauses (i) and (ii)) such limitations or unenforceability will not
render such
loan documents invalid as a whole or substantially interfere with
the
mortgagee's realization of the principal benefits and/or security
provided
thereby. There is no valid defense, counterclaim or right of offset
or
rescission available to the related Mortgagor with respect to such
Mortgage
Note, Mortgage or other agreements that would deny the mortgagee
the principal
benefits intended to be provided thereby, except in each case, with
respect to
the enforceability of any provisions requiring the payment of
default interest,
late fees, additional interest, prepayment premiums or yield
maintenance
charges.
14. Insurance. Except in certain cases where tenants, having a net
worth of at least $50,000,000 or an investment grade credit rating
(and, if
rated by Fitch, a credit rating of at least "A-" by Fitch) and
obligated to
maintain the insurance described in this paragraph, are
I-6
allowed to self-insure the related Mortgaged Properties, all
improvements upon
each Mortgaged Property securing a Mortgage Loan are insured under
a fire and
extended perils insurance (or the equivalent) policy, in an amount
at least
equal to the lesser of the outstanding principal balance of such
Mortgage Loan
and 100% of the full insurable replacement cost of the improvements
located on
the related Mortgaged Property, and if applicable, the related
hazard insurance
policy contains appropriate endorsements to avoid the application
of
co-insurance and does not permit reduction in insurance proceeds
for
depreciation. Each Mortgaged Property is also covered by
comprehensive general
liability insurance in amounts customarily required by prudent
commercial
mortgage lenders for properties of similar types. Each Mortgaged
Property
securing a Mortgage Loan is the subject of a business interruption
or rent loss
insurance policy providing coverage for at least twelve (12) months
(or a
specified dollar amount which is reasonably estimated to cover no
less than
twelve (12) months of rental income), unless such Mortgaged
Property constitutes
a manufactured housing community. If any portion of the
improvements on a
Mortgaged Property securing any Mortgage Loan was, at the time of
the
origination of such Mortgage Loan, in an area identified in the
Federal Register
by the Flood Emergency Management Agency as a special flood hazard
area (Zone A
or Zone V), and flood insurance was available, a flood insurance
policy is in
effect with a generally acceptable insurance carrier, in an amount
representing
coverage not less than the least of: (1) the minimum amount
required, under the
terms of coverage, to compensate for any damage or loss on a
replacement basis,
(2) the outstanding principal balance of such Mortgage Loan, and
(3) the maximum
amount of insurance available under the applicable federal flood
insurance
program. Each Mortgaged Property located in California or in
seismic zones 3 and
4 is covered by seismic insurance to the extent such Mortgaged
Property has a
probable maximum loss of greater than twenty percent (20%) of the
replacement
value of the related improvements, calculated using methodology
acceptable to a
reasonably prudent commercial mortgage lender with respect to
similar properties
in the same area or earthquake zone. Each Mortgaged Property
located within
Florida or within 25 miles of the coast of North Carolina, South
Carolina,
Georgia, Alabama, Mississippi, Louisiana or Texas is insured by
windstorm
insurance in an amount at least equal to the lesser of (i) the
outstanding
principal balance of the related Mortgage Loan and (ii) 100% of the
insurable
replacement cost of the improvements located on such Mortgaged
Property (less
physical depreciation). All such hazard and flood insurance
policies contain a
standard mortgagee clause for the benefit of the holder of the
related Mortgage,
its successors and assigns, as mortgagee, and are not terminable
(nor may the
amount of coverage provided thereunder be reduced) without at least
ten (10)
days' prior written notice to the mortgagee; and no such notice has
been
received, including any notice of nonpayment of premiums, that has
not been
cured. Additionally, for any Mortgage Loan having a Cut-off Date
Balance equal
to or greater than $20,000,000, the insurer for all of the required
coverages
set forth herein has a claims paying ability or financial strength
rating from
S&P or Moody's of not less than A-minus (or the equivalent), or
from A.M. Best
Company of not less than "A-minus: V" (or the equivalent) and, if
rated by
Fitch, of not less than "A-" from Fitch (or the equivalent). With
respect to
each Mortgage Loan, the related Mortgage Loan documents require
that the related
Mortgagor or a tenant of such Mortgagor maintain insurance as
described above or
permit the related mortgagee to require insurance as described
above. Except
under circumstances that would be reasonably acceptable to a
prudent commercial
mortgage lender or that would not otherwise materially and
adversely affect the
security intended to be provided by the related Mortgage, the
Mortgage Loan
documents for each Mortgage Loan provide that proceeds paid under
any such
casualty
I-7
insurance policy will (or, at the lender's option, will) be applied
either to
the repair or restoration of all or part of the related Mortgaged
Property or to
the payment of amounts due under such Mortgage Loan; provided that
the related
Mortgage Loan documents may entitle the related Mortgagor to any
portion of such
proceeds remaining after the repair or restoration of the related
Mortgaged
Property or payment of amounts due under the Mortgage Loan; and
provided,
further, that, if the related Mortgagor holds a leasehold interest
in the
related Mortgaged Property, the application of such proceeds will
be subject to
the terms of the related Ground Lease (as defined in representation
18 below).
Each Mortgaged Property is insured by an "all-risk" casualty
insurance
policy that does not contain an express exclusion for (or,
alternatively, is
covered by a separate policy that insures against property damage
resulting
from) acts of terrorism.
15. Taxes and Assessments. There are no delinquent property taxes
or
assessments or other outstanding charges affecting any Mortgaged
Property
securing a Mortgage Loan that are a lien of priority equal to or
higher than the
lien of the related Mortgage and that have not been paid or are not
otherwise
covered by an escrow of funds sufficient to pay such charge. For
purposes of
this representation and warranty, real property taxes and
assessments and other
charges shall not be considered delinquent until the date on which
interest
and/or penalties would be payable thereon.
16. Mortgagor Bankruptcy. No Mortgagor under a Mortgage Loan is a
debtor in any state or federal bankruptcy, insolvency or similar
proceeding.
17. Local Law Compliance. To the Seller's knowledge, based upon a
letter from governmental authorities, a legal opinion, a zoning
consultant's
report or an endorsement to the related Title Policy, or based on
such other due
diligence considered reasonable by prudent commercial mortgage
lenders in the
lending area where the subject Mortgaged Property is located
(including, without
limitation, when commercially reasonable, a representation of the
related
Mortgagor at the time of origination of the subject Mortgage Loan),
the
improvements located on or forming part of each Mortgaged Property
securing a
Mortgage Loan are in material compliance with applicable zoning
laws and
ordinances or constitute a legal non-conforming use or structure
(or, if any
such improvement does not so comply and does not constitute a legal
non-conforming use or structure, such non-compliance and failure
does not
materially and adversely affect the Value of the related Mortgaged
Property). In
the case of each legal non-conforming use or structure, the related
Mortgaged
Property may be restored or repaired to the full extent of the use
or structure
at the time of such casualty or law and ordinance coverage has been
obtained in
an amount that would be required by prudent commercial mortgage
lenders (or, if
the related Mortgaged Property may not be restored or repaired to
the full
extent of the use or structure at the time of such casualty and law
and
ordinance coverage has not been obtained in an amount that would be
required by
prudent commercial mortgage lenders, such fact does not materially
and adversely
affect the Value of the related Mortgaged Property).
18. Material Leasehold Estate. If any Mortgage Loan is secured by
the
interest of a Mortgagor as a lessee under a ground lease of all or
a material
portion of a Mortgaged Property (together with any and all written
amendments
and modifications thereof and any and all estoppels from or other
agreements
with the ground lessor, a "Ground Lease"),
I-8
but not by the related fee interest in such Mortgaged Property or
such material
portion thereof (the "Fee Interest"), then:
(i) such Ground Lease or a memorandum thereof has been or will be
promptly and duly recorded; such Ground Lease permits the interest
of the
lessee thereunder to be encumbered by the related Mortgage; and
there has
been no material change in the terms of such Ground Lease since its
recordation, with the exception of material changes reflected in
written
instruments which are a part of the related Mortgage File; and if
required
by such Ground Lease, the lessor thereunder has received notice of
the lien
of the related Mortgage in accordance with the provisions of such
Ground
Lease;
(ii) the related lessee's leasehold interest in the portion of the
related Mortgaged Property covered by such Ground Lease is not
subject to
any liens or encumbrances superior to, or of equal priority with,
the
related Mortgage, other than the related Fee Interest and Permitted
Encumbrances;
(iii) upon foreclosure of such Mortgage Loan (or acceptance of a
deed
in lieu thereof), the Mortgagor's interest in such Ground Lease is
assignable to, and is there
