EXHIBIT 99.4
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of December 1, 2005
(this "Agreement"), is entered into between IXIS Real Estate
Capital Inc. (the
"Seller") and Merrill Lynch Mortgage Investors, Inc. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to purchase
one
(1) commercial mortgage loan (the "Mortgage Loan") identified on
the schedule
(the "Mortgage Loan Schedule") annexed hereto as Schedule II. The
Purchaser
intends to deposit the Mortgage Loan, 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 December 1,
2005 (the "Pooling and Servicing Agreement"), among the Purchaser
as depositor,
KeyCorp Real Estate Capital Markets, Inc. as master servicer (in
such capacity,
the "Master Servicer"), J.E. Robert Company, 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
December 1, 2005 (the "Underwriting Agreement"), with Merrill
Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), for itself and
as representative
of Countrywide Securities Corporation ("Countrywide Securities"),
IXIS
Securities North America Inc. ("IXIS Securities"), KeyBanc Capital
Markets, a
Division of McDonald Investments Inc. ("McDonald Investments"),
Morgan Stanley &
Co. Incorporated ("Morgan Stanley") and Goldman, Sachs & Co.
("Goldman Sachs";
Merrill Lynch, Countrywide Securities, IXIS Securities, McDonald
Investments,
Morgan Stanley and Goldman Sachs, 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
December 1,
2005 (the "Certificate Purchase Agreement"), with Merrill Lynch,
for itself and
as representative of Countrywide Securities (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
Loan. The Mortgage Loan is expected to have an aggregate principal
balance of
$100,000,000 (the "IXIS 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 IXIS 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 $3,073,749,461 (subject to a
variance of plus or
minus 5%). The purchase and sale of the Mortgage Loan shall take
place on
December 7, 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 Loan shall be equal to (i)
99.22796% of the
IXIS Mortgage Loan Balance as of the Cut-off Date, plus (ii)
$82,490, which
amount represents the amount of interest accrued on the IXIS
Mortgage Loan
Balance, as agreed to by the Seller and the Purchaser.
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 Loan.
(a) Effective as of the Closing Date, subject only to the Seller's
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 Loan 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
Loan 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 Loan 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 the
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 the Mortgage Loan (the
documents and
instruments specified below and referred to in clauses (i) and (ii)
preceding,
collectively, the "Mortgage File"). The Mortgage File 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 the Mortgage Loan
shall contain
the following documents:
(i) the original executed Mortgage Note for the 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-CKI1, Commercial Mortgage Pass-Through
Certificates, Series 2005-CKI1, or in blank;
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(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
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-CKI1, Commercial Mortgage Pass-Through
Certificates,
Series 2005-CKI1, 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-CKI1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-CKI1, 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 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 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-CKI1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-CKI1, as assignee,
or in
blank;
(ix) an original or copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) any intercreditor agreement relating to permitted debt of the
Mortgagor and any intercreditor agreement relating to mezzanine
debt
related to the Mortgagor;
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(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 Mortgage Loan; and
(xii) if the Mortgage Loan is secured by a hospitality property, a
signed copy of any franchise agreement and/or franchisor comfort
letter.
The foregoing Mortgage File delivery requirement shall be subject
to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller shall take all actions reasonably necessary to
permit
the Trustee to fulfill its obligations pursuant to Section 2.01(d)
of the
Pooling and Servicing Agreement with respect to the Mortgage Loan,
including
bearing the out-of-pocket costs and expenses of the Trustee in
connection with
the performance by the Trustee of its recording, filing and
delivery obligations
pursuant to Section 2.01(d) of the Pooling and Servicing Agreement.
(e) All such other relevant documents and records that (a) relate
to
the administration or servicing of the Mortgage Loan, (b) are
reasonably
necessary for the ongoing administration and/or servicing of the
Mortgage Loan
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 Loan,
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 the 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 the 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 New York and the
Seller has
taken all necessary corporate action
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to authorize the execution, delivery and performance of this
Agreement by
it, and has the power and authority to execute, deliver and perform
this
Agreement and all transactions contemplated hereby.
(ii) This Agreement has been duly and validly authorized, executed
and
delivered by the Seller, all requisite action by the Seller's
directors and
officers has been taken in connection therewith, and (assuming the
due
authorization, execution and delivery hereof by the Purchaser) this
Agreement constitutes the valid, legal and binding agreement of the
Seller,
enforceable against the Seller in accordance with its terms, except
as such
enforcement may be limited by (A) laws relating to bankruptcy,
insolvency,
fraudulent transfer, reorganization, receivership or moratorium,
(B) other
laws relating to or affecting the rights of creditors generally, or
(C)
general equity principles (regardless of whether such enforcement
is
considered in a proceeding in equity or at law).
(iii) The execution and delivery of this Agreement by the Seller
and
the Seller's performance and compliance with the terms of this
Agreement
will not (A) violate the Seller's certificate of incorporation or
bylaws,
(B) violate any law or regulation or any administrative decree or
order to
which it is subject or (C) constitute a default (or an event which,
with
notice or lapse of time, or both, would constitute a 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 Loan by the Seller, the
transfer of the Mortgage Loan 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
5
its duties and obligations under this Agreement or materially
impair the
ability of the Purchaser to realize on the Mortgage Loan.
(viii) There is no action, suit, proceeding or investigation
pending
or to the knowledge of the Seller, threatened against the Seller in
any
court or by or before any other governmental agency or
instrumentality
which would, in the Seller's good faith and reasonable judgment,
prohibit
its entering into this Agreement or materially and adversely affect
the
validity of this Agreement or the performance by the Seller of its
obligations under this Agreement.
(ix) Under generally accepted accounting principles ("GAAP") and
for
federal income tax purposes, the Seller will report the transfer of
the
Mortgage Loan to the Purchaser as a sale of the Mortgage Loan 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 Loan to the Purchaser will constitute
at
least reasonably equivalent value and fair consideration for the
Mortgage
Loan. The Seller will be solvent at all relevant times prior to,
and will
not be rendered insolvent by, the sale of the Mortgage Loan to the
Purchaser. The Seller is not selling the Mortgage Loan 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) the Mortgage Loan, subject, however, to the exceptions set
forth on Annex A
to Schedule I of this Agreement.
If the Seller receives written notice of a Document Defect or a
Breach
relating to the 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 the
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
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 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 the 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 Mortgage Loan
(which, for
purposes of such repurchase or substitution, shall include an REO
Loan); and
provided, further, that with respect to such additional 90-day
period, the
Seller shall have delivered an officer's certificate to the Trustee
setting
forth the reason(s) such Document Defect or Breach is not capable
of being cured
within the initial 90-day
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period and what actions the Seller is pursuing in connection with
the cure
thereof and stating that the Seller anticipates that such Document
Defect or
Breach will be cured within the additional 90-day period; and
provided, further,
that no Document Defect (other than with respect to the Specially
Designated
Mortgage Loan Documents) shall be considered to materially and
adversely affect
the interests of the Certificateholders or the value of the
Mortgage Loan unless
the document with respect to which the Document Defect exists is
required in
connection with an imminent enforcement of the mortgagee's rights
or remedies
under the Mortgage Loan, defending any claim asserted by any
borrower or third
party with respect to the Mortgage Loan, establishing the validity
or priority
of any lien or any collateral securing the Mortgage Loan or for any
immediate
servicing obligations.
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 Mortgage Loan or
the interests
of the Certificateholders therein) with respect to one or more
Mortgaged
Properties with respect to the 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) and to the extent not covered
by the
applicable release price (if any) required under the related
Mortgage Loan
documents, the Seller pays (or causes to be paid) any additional
amounts
necessary to cover all reasonable out-of-pocket expenses reasonably
incurred by
the Master Servicer, the Special Servicer, the Trustee or the Trust
Fund in
connection with such release, (ii) the remaining Mortgaged
Property(ies) satisfy
the requirements, if any, set forth in the Mortgage Loan documents
and the
Seller provides an opinion of counsel to the effect that such
release would not
cause either of REMIC I or REMIC II to fail to qualify as a REMIC
under the Code
or result in the imposition of any tax on "prohibited transactions"
or
"contributions" after the Startup Day under the REMIC Provisions
and (iii) each
Rating Agency then rating the Certificates shall have provided
written
confirmation that such release would not cause the then-current
ratings of the
Certificates rated by it to be qualified, downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding, the
Purchaser's sole remedy (subject to the last sentence of this
paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be
the cure of
such breach by the Seller, which cure shall be effected through the
payment by
the Seller of such costs and expenses (without regard to whether
such costs and
expenses are material or not) specified in such representation that
have not, at
the time of such cure, been received by the Master Servicer or the
Special
Servicer from the related Mortgagor and not a repurchase or
substitution of the
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 the
Mortgage Loan may be repurchased or substituted) of the Mortgage
Loan, if
representation 30 set forth on Schedule I has been breached as to
the Mortgage
Loan, in lieu of paying the costs and expenses that were the
subject of the
breach of representation 30 set forth on Schedule I.
(c) In connection with any permitted repurchase or substitution of
the
Mortgage Loan 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
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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 the 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 the 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 the
repurchased or deleted Mortgage Loan.
At the time a substitution is made, the Seller shall deliver the
related Mortgage File to the Trustee and certify that the
substitute mortgage
loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or
Qualified
Substitute Mortgage Loans may be made in any calendar month after
the
Determination Date for such month. Periodic Payments due with
respect to any
Qualified Substitute Mortgage Loan after the related date of
substitution shall
be part of REMIC I, as applicable. No substitution of a Qualified
Substitute
Mortgage Loan for the 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
the Mortgage
Loan exceeds 10% of the aggregate Cut-off Date Balance of the
Mortgage Loan 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.
(d) 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
8
decree or order to which it is subject or (C) constitute a default
(or an event
which, with notice or lapse of time, or both, would constitute a
default) under,
or result in the breach of, any material contract, agreement or
other instrument
to which the Purchaser is a party or by which the Purchaser is
bound, which
default might have consequences that would, in the Purchaser's
reasonable and
good faith judgment, materially and adversely affect the condition
(financial or
other) or operations of the Purchaser or its properties or have
consequences
that would materially and adversely affect its performance
hereunder.
(d) The Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any
other
corporate restriction or any judgment, order, writ, injunction,
decree, law or
regulation that would, in the Purchaser's reasonable and good faith
judgment,
materially and adversely affect the ability of the Purchaser to
perform its
obligations under this Agreement or that requires the consent of
any third
person to the execution of this Agreement or the performance by the
Purchaser of
its obligations under this Agreement (except to the extent such
consent has been
obtained).
(e) Except as may be required under federal or state securities
laws
(and which will be obtained on a timely basis), no consent,
approval,
authorization or order of, registration or filing with, or notice
to, any
governmental authority or court, is required, under federal or
state law, for
the execution, delivery and performance by the Purchaser of, or
compliance by
the Purchaser with, this Agreement, or the consummation by the
Purchaser of any
transaction described in this Agreement.
(f) Under GAAP and for federal income tax purposes, the Purchaser
will
report the transfer of the Mortgage Loan by the Seller to the
Purchaser as a
sale of the Mortgage Loan 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 Loan
(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;
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(b) All documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and
acceptable to the
Purchaser, the Seller, the Underwriters and their respective
counsel in their
reasonable discretion, shall be duly executed and delivered by all
signatories
as required pursuant to the respective terms thereof;
(c) The Seller shall have delivered and released to the Trustee (or
a
Custodian on its behalf) and the Master Servicer, respectively, all
documents
represented to have been or required to be delivered to the Trustee
and the
Master Servicer pursuant to Section 2 of this Agreement;
(d) All other terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been
complied with in all
material respects and the Seller and the Purchaser shall have the
ability to
comply with all terms and conditions and perform all duties and
obligations
required to be complied with or performed after the Closing Date;
(e) The Seller shall have paid all fees and expenses payable by it
to
the Purchaser or otherwise pursuant to this Agreement as of the
Closing Date;
(f) One or more letters from the independent accounting firms of
Ernst
& Young LLP and PriceWaterhouseCoopers LLP, in form
satisfactory to the
Purchaser and relating to certain information regarding the
Mortgage Loan 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 December 1,
2005, among the
Seller, Merrill Lynch Mortgage Lending, Inc., Countrywide
Commercial Real Estate
Finance, Inc., KeyBank 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 Loan 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
December 7, 2005,
between the Seller and KeyCorp Real Estate Capital Markets, 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
10
as such officer or representative, and the signatures of such
persons appearing
on such documents and certificates are their genuine signatures;
(d) An officer's certificate from an officer of the Seller (signed
in
his/her capacity as an officer), dated the Closing Date, and upon
which the
Purchaser, the Underwriters and Initial Purchasers may rely, to the
effect that
(i) such officer has carefully examined the Specified Portions (as
defined
below) of the Prospectus Supplement and nothing has come to his
attention that
would lead him to believe that the Specified Portions of the
Prospectus
Supplement, as of the date of the Prospectus Supplement or as of
the Closing
Date, included or include any untrue statement of a material fact
relating to
the Mortgage Loan or omitted or omit to state therein a material
fact necessary
in order to make the statements therein relating to the Mortgage
Loan, 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 December 1, 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 Loan or omitted or omit to state therein a
material
fact necessary in order to make the statements therein related to
the Mortgage
Loan, 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
Loan), 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 Loan), Annex B to the
Prospectus Supplement
entitled "Certain Characteristics Regarding Multifamily Properties"
(insofar as
the information contained in Annex B relates to the Mortgage Loan),
Annex C to
the Prospectus Supplement, entitled "Structural and Collateral Term
Sheet"
(insofar as the information contained in Annex C relates to the
Mortgage Loan),
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 Loan and
exclusive of any
statements in such sections that purport to describe the servicing
and
administration provisions of the Pooling and Servicing Agreement
and exclusive
of aggregated numerical information that includes the Other
Mortgage Loans):
"Summary of Prospectus Supplement--Relevant Parties--Mortgage Loan
Sellers",
"Summary of Prospectus Supplement--The Mortgage Loans And The
Mortgaged Real
Properties," "Risk Factors" and "Description of the Mortgage Pool".
The
"Specified Portions" of the Memorandum shall consist of the
Specified Portions
of the Prospectus Supplement (as attached as an exhibit to the
Memorandum);
(e) Each of: (i) the resolutions of the Seller's board of directors
or
a committee thereof authorizing the Seller's entering into the
transactions
contemplated by this Agreement, (ii) the certificate of
incorporation and bylaws
of the Seller, and (iii) a certificate of good standing of the
Seller issued by
the State of New York not earlier than thirty (30) days prior to
the Closing
Date;
(f) A written opinion of counsel for the Seller relating to
corporate
and enforceability matters (which opinion may be from in-house
counsel, outside
counsel or a combination thereof), reasonably satisfactory to the
Purchaser, its
counsel and the Rating Agencies, dated the Closing Date and
addressed to the
Purchaser, the Trustee, the Underwriters, the Initial Purchasers
and each of the
Rating Agencies, together with such other written opinions,
including as to
insolvency matters, as may be required by the Rating Agencies; and
11
(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 Loan by the
Seller to the
Purchaser as provided in Section 2 of this Agreement be, and be
construed as, a
sale of the Mortgage Loan by the Seller to the Purchaser and not as
a pledge of
the Mortgage Loan 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 Loan is 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 Loan 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 Loan, and all amounts payable to the holder of the
Mortgage Loan in
accordance with the terms thereof, and all proceeds of the
conversion, voluntary
or involuntary, of the foregoing into cash, instruments, securities
or other
property, including without limitation, all amounts, other than
investment
earnings (other than investment earnings required by Section
3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest
Shortfalls), from
time to time held or invested in the Collection Account, the
Distribution
Account or, if established, the REO Account whether in the form of
cash,
instruments, securities or other property; (iii) the assignment to
the Trustee
of the interest of the Purchaser as contemplated by Section 1 of
this Agreement
shall be deemed to be an assignment of any security interest
created hereunder;
(iv) the possession by the Trustee or any of its agents, including,
without
limitation, the Custodian, of the Mortgage Notes, and such other
items of
property as constitute instruments, money, negotiable documents or
chattel paper
shall be deemed to be possession by the secured party for purposes
of perfecting
the security interest pursuant to Section 9-313 of the UCC of the
applicable
jurisdiction; and (v) notifications to persons (other than the
Trustee) holding
such property, and acknowledgments, receipts or confirmations from
persons
(other than the Trustee) holding such property, shall be deemed
notifications
to, or acknowledgments, receipts or confirmations from, financial
intermediaries, bailees or agents (as applicable) of the secured
party for the
purpose of perfecting such security interest under applicable law.
The Seller
and the Purchaser shall, to the extent consistent with this
Agreement, take such
actions as may be necessary to ensure that, if this Agreement were
deemed to
create a security interest in the Mortgage Loan, 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
12
shall be deemed to have been duly given
