Exhibit 99.3
EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of June 21,
2005
(this "Agreement"), is entered into between PNC Bank, National
Association
(the "Seller") and Merrill Lynch Mortgage Investors, Inc. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to
purchase
certain multifamily, commercial and manufactured housing community
mortgage
loans (the "Mortgage Loans") identified on the schedule (the
"Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to
deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other
Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial
ownership of
which will be evidenced by multiple classes of mortgage
pass-through
certificates (the "Certificates"). One or more "real estate
mortgage
investment conduit" ("REMIC") elections will be made with respect
to most of
the Trust Fund. The Trust Fund will be created and the Certificates
will be
issued pursuant to a Pooling and Servicing Agreement, dated as of
June 1, 2005
(the "Pooling and Servicing Agreement"), among the Purchaser as
depositor,
Midland Loan Services, Inc. as master servicer (in such capacity,
the "Master
Servicer") and as special servicer (in such capacity, the "Special
Servicer"),
and Wells Fargo Bank, N.A., as trustee (the "Trustee"). Capitalized
terms used
but not defined herein (including the schedules attached hereto)
have the
respective meanings set forth in the Pooling and Servicing
Agreement.
The Purchaser has entered into an Underwriting Agreement, dated
as
of June 21, 2005 (the "Underwriting Agreement"), with Merrill
Lynch, Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), for itself and
as
representative of Countrywide Securities Corporation
("Countrywide"), PNC
Capital Markets, Inc. ("PNC") and Wachovia Capital Markets, LLC
("Wachovia";
Merrill Lynch, Countrywide, PNC 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
June 21, 2005 (the "Certificate Purchase Agreement"), with Merrill
Lynch, for
itself and as representative of Countrywide (together in such
capacity, the
"Initial Purchasers"), whereby the Purchaser will sell to the
Initial
Purchasers all of the remaining Certificates (such Certificates,
the "Private
Certificates").
Now, therefore, in
consideration of the premises and the mutual
agreements set forth herein, the parties agree as follows:
SECTION 1. Agreement to Purchase.
The Seller agrees to sell, and the Purchaser agrees to purchase,
the
Mortgage Loans identified on the Mortgage Loan Schedule. The
Mortgage Loan
Schedule may be amended to reflect the actual Mortgage Loans
delivered to the
Purchaser pursuant to the terms hereof. The Mortgage Loans are
expected to
have an aggregate principal balance of $301,233,846 (the "PNC Bank
Mortgage
Loan Balance") (subject to a variance of plus or minus 5.0%) as of
the close
of business on the Cut-off Date, after giving effect to any
payments due on or
before such date, whether or not such payments are received. The
PNC Bank
Mortgage Loan
<PAGE>
Balance, together with the aggregate principal balance of the Other
Mortgage
Loans as of the Cut-off Date (after giving effect to any payments
due on or
before such date, whether or not such payments are received), is
expected to
equal an aggregate principal balance (the "Cut-off Date Pool
Balance") of
$1,737,992,952 (subject to a variance of plus or minus 5%). The
purchase and
sale of the Mortgage Loans shall take place on June 29, 2005 or
such other
date as shall be mutually acceptable to the parties to this
Agreement (the
"Closing Date"). The consideration (the "Purchase Consideration")
for the
Mortgage Loans shall be equal to (i) 103.5079% of the PNC Bank
Mortgage Loan
Balance as of the Cut-off Date, plus (ii) $1,259,951, which amount
represents
the amount of interest accrued on the PNC Bank Mortgage Loan
Balance at the
related Net Mortgage Rate for the period from and including the
Cut-off Date
up to but not including the Closing Date.
The Purchase Consideration shall be paid to the Seller or its
designee by wire transfer in immediately available funds on the
Closing Date.
The Purchaser hereby directs the Seller to deliver, and the
Seller
shall deliver, the Closing Date Deposit (in the amount of
$218,782.09) to the
Master Servicer on the Closing Date. The Closing Date Deposit shall
be
delivered to the account specified by the Master Servicer by wire
transfer of
immediately available funds.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as
of the Closing Date, subject only to receipt of the
Purchase Consideration and the satisfaction or waiver of the
conditions to
closing set forth in Section 5 of this Agreement (which conditions
shall be
deemed to have been satisfied or waived upon the Seller's receipt
of the
Purchase Consideration), the Seller does hereby sell, transfer,
assign, set
over and otherwise convey to the Purchaser, without recourse
(except as set
forth in this Agreement), all the right, title and interest of the
Seller in
and to the Mortgage Loans identified on the Mortgage Loan Schedule
as of such
date, on a servicing released basis, together with all of the
Seller's right,
title and interest in and to the proceeds of any related title,
hazard,
primary mortgage or other insurance proceeds and all of the
Seller's right,
title and interest in and to the Closing Date Deposit. The Mortgage
Loan
Schedule, as it may be amended, shall conform to the requirements
set forth in
this Agreement and the Pooling and Servicing Agreement.
(b) The
Purchaser or its assignee shall be entitled to receive all
scheduled payments of principal and interest due after the Cut-off
Date, and
all other recoveries of principal and interest collected after the
Cut-off
Date (other than in respect of principal and interest on the
Mortgage Loans
due on or before the Cut-off Date). All scheduled payments of
principal and
interest due on or before the Cut-off Date but collected after the
Cut-off
Date, and recoveries of principal and interest collected on or
before the
Cut-off Date (only in respect of principal and interest on the
Mortgage Loans
due on or before the Cut-off Date and principal prepayments
thereon), shall
belong to, and be promptly remitted to, the Seller.
(c) The Seller hereby represents
and warrants that it has or will
have, on behalf of the Purchaser, delivered to the Trustee (i) on
or before
the Closing Date, the documents and instruments specified below
with respect
to each Mortgage Loan that are Specially Designated Mortgage Loan
Documents
and (ii) on or before the date that is 30 days after the
2
<PAGE>
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 "Mortgage File"). All
Mortgage Files
so delivered will be held by the Trustee in escrow for the benefit
of the
Seller at all times prior to the Closing Date. Each Mortgage File
shall
contain the following documents:
(i) the original
executed Mortgage Note for the subject Mortgage
Loan, including any power of attorney related to the execution
thereof
(or
a lost note affidavit and indemnity with a copy of such Mortgage
Note
attached thereto), together with any and all intervening
endorsements
thereon, endorsed on its face or by allonge attached thereto
(without
recourse, representation or warranty, express or implied) to the
order of
Wells Fargo Bank, N.A., as trustee for the registered holders of
Merrill
Lynch Mortgage Trust 2005-MCP1, Commercial Mortgage
Pass-Through
Certificates, Series 2005-MCP1, or in blank;
(ii) an original or
copy of the Mortgage, together with originals or
copies of any and all intervening assignments thereof, in each
case
(unless not yet returned by the applicable recording office)
with
evidence of recording indicated thereon or certified by the
applicable
recording office;
(iii) an original or copy of any related Assignment of Leases
(if
such
item is a document separate from the Mortgage), together with
originals or copies of any and all intervening assignments thereof,
in
each
case (unless not yet returned by the applicable recording
office)
with
evidence of recording indicated thereon or certified by the
applicable recording office;
(iv) an original
executed assignment, in recordable form (except for
completion of the assignee's name (if the assignment is delivered
in
blank) and any missing recording information or a certified copy of
that
assignment as sent for recording), of (a) the Mortgage, (b) any
related
Assignment of Leases (if such item is a document separate from
the
Mortgage) and (c) any other recorded document relating to the
subject
Mortgage Loan otherwise included in the Mortgage File, in favor of
Wells
Fargo Bank, N.A., as trustee for the registered holders of Merrill
Lynch
Mortgage Trust 2005-MCP1, Commercial Mortgage Pass-Through
Certificates,
Series 2005-MCP1, or in blank;
(v) an original
assignment of all unrecorded documents relating to
the
Mortgage Loan (to the extent not already assigned pursuant to
clause
(iv)
above) in favor of Wells Fargo Bank, N.A., as trustee for the
registered holders of Merrill Lynch Mortgage Trust 2005-MCP1,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MCP1, or in
blank;
(vi) originals or copies of any consolidation, assumption,
substitution and modification agreements in those instances where
the
terms or provisions of the Mortgage or Mortgage Note have been
consolidated or modified or the subject Mortgage Loan has been
assumed;
3
<PAGE>
(vii) the original or a copy of the policy or certificate of
lender's title insurance or, if such policy has not been issued
or
located, an original or copy of an irrevocable, binding commitment
(which
may
be a pro forma policy or a marked version of the policy that has
been
executed by an authorized representative of the title company or
an
agreement to provide the same pursuant to binding escrow
instructions
executed by an authorized representative of the title company) to
issue
such
title insurance policy;
(viii) any filed copies or other evidence of filing of any prior
UCC
Financing Statements in favor of the originator of the subject
Mortgage
Loan
or in favor of any assignee prior to the Trustee (but only to
the
extent the Seller had possession of such UCC Financing Statements
prior
to the Closing Date)
and, if there is an effective UCC Financing
Statement in favor of the Seller on record with the applicable
public
office for UCC Financing Statements, a UCC Financing Statement
assignment, in form suitable for filing in favor of Wells Fargo
Bank,
N.A., as trustee for the registered holders of Merrill Lynch
Mortgage
Trust 2005-MCP1, Commercial Mortgage Pass-Through Certificates,
Series
2005-MCP1, as assignee, or in blank;
(ix) an original or
copy of any Ground Lease, guaranty or ground
lessor estoppel;
(x) any
intercreditor agreement relating to permitted debt of the
Mortgagor and any intercreditor agreement relating to mezzanine
debt
related to the Mortgagor;
(xi)
an original or a copy
of any loan agreement, any escrow or
reserve agreement, any security agreement, any management
agreement, any
agreed upon procedures letter, any lockbox or cash management
agreements,
any
environmental reports or any letter of credit, in each case
relating
to
the subject Mortgage Loan; and
(xii) with respect to a Mortgage Loan secured by a hospitality
property, a signed copy of any franchise agreement and/or
franchisor
comfort letter.
The foregoing Mortgage File delivery requirement shall be subject
to
Section 2.01(c) of the Pooling and Servicing Agreement.
(d) The Seller
shall retain an Independent third party (the
"Recording/Filing Agent") that shall, as to each Mortgage Loan,
promptly (and
in any event within 90 days following the later of the Closing Date
and the
delivery of each Mortgage, Assignment of Leases, recordable
document and UCC
Financing Statement to the Trustee) cause to be submitted for
recording or
filing, as the case may be, in the appropriate public office for
real property
records or UCC Financing Statements, each assignment of Mortgage,
assignment
of Assignment of Leases and any other recordable documents relating
to each
such Mortgage Loan in favor of the Trustee that is referred to in
clause (iv)
of the definition of "Mortgage File" and each UCC Financing
Statement
assignment in favor of the Trustee and that is referred to in
clause (viii) of
the definition of "Mortgage File." Each such assignment and UCC
Financing
Statement assignment shall reflect that the recorded original
should be
returned by the public recording office to the Trustee following
recording,
and each such assignment and UCC Financing Statement assignment
shall reflect
that the file copy thereof should be returned to the Trustee
following filing;
provided, that in those instances where the public recording
office
4
<PAGE>
retains the original assignment of Mortgage or assignment of
Assignment of
Leases, the Recording/Filing Agent shall obtain therefrom a
certified copy of
the recorded original. If any such document or instrument is lost
or returned
unrecorded or unfiled, as the case may be, because of a defect
therein, then
the Seller shall prepare a substitute therefor or cure such defect
or cause
such to be done, as the case may be, and the Seller shall deliver
such
substitute or corrected document or instrument to the Trustee (or,
if the
Mortgage Loan is then no longer subject to the Pooling and
Servicing
Agreement, to the then holder of such Mortgage Loan).
The Seller shall bear the out-of-pocket costs and expenses of
all
such recording, filing and delivery contemplated in the preceding
paragraph,
including, without limitation, any costs and expenses that may be
incurred by
the Trustee in connection with any such recording, filing or
delivery
performed by the Trustee at the Seller's request and the fees of
the
Recording/Filing Agent.
(e) All such
other relevant documents and records that (a) relate to
the administration or servicing of the Mortgage Loans, (b) are
reasonably
necessary for the ongoing administration and/or servicing of such
Mortgage
Loans by the Master Servicer in connection with its duties under
the Pooling
and Servicing Agreement, and (c) are in the possession or under the
control of
the Seller, together with all unapplied escrow amounts and reserve
amounts in
the possession or under the control of the Seller that relate to
the Mortgage
Loans, shall be delivered or caused to be delivered by the Seller
to the
Master Servicer (or, at the direction of the Master Servicer, to
the
appropriate sub-servicer); provided that the Seller shall not be
required to
deliver any draft documents, privileged or other communications,
credit
underwriting or due diligence analyses, credit committee briefs or
memoranda
or other internal approval documents or data or internal
worksheets,
memoranda, communications or evaluations.
The Seller agrees to use reasonable efforts to deliver to the
Trustee, for its administrative convenience in reviewing the
Mortgage Files, a
mortgage loan checklist for each Mortgage Loan. The foregoing
sentence
notwithstanding, the failure of the Seller to deliver a mortgage
loan
checklist or a complete mortgage loan checklist shall not give rise
to any
liability whatsoever on the part of the Seller to the Purchaser,
the Trustee
or any other person because the delivery of the mortgage loan
checklist is
being provided to the Trustee solely for its administrative
convenience.
(f) The Seller
shall take such actions as are reasonably necessary
to assign or otherwise grant to the Trust Fund the benefit of any
letters of
credit in the name of the Seller, which secure any Mortgage
Loan.
(g) On or before
the Closing Date, the Seller shall provide to the
Master Servicer, the initial data (as of the Cut-off Date or the
most recent
earlier date for which such data is available) contemplated by the
CMSA Loan
Setup File, the CMSA Loan Periodic Update File, the CMSA Operating
Statement
Analysis Report and the CMSA Property File.
SECTION 3. Representations, Warranties and Covenants of Seller.
(a) The Seller
hereby represents and warrants to and covenants with
the Purchaser, as of the date hereof, that:
5
<PAGE>
(i) The Seller
is a national banking association duly organized,
validly existing and in good standing under the laws of the United
States
and
the Seller has taken all necessary corporate action to authorize
the
execution, delivery and performance of this Agreement by it, and
has the
power and authority to execute, deliver and perform this Agreement
and
all
transactions contemplated hereby.
(ii) This Agreement
has been duly and validly authorized, executed
and
delivered by the Seller, all requisite action by the Seller's
directors and officers has been taken in connection therewith,
and
(assuming the due authorization, execution and delivery hereof by
the
Purchaser) this Agreement constitutes the valid, legal and
binding
agreement of the Seller, enforceable against the Seller in
accordance
with
its terms, except as such enforcement may be limited by (A)
laws
relating to bankruptcy, insolvency, fraudulent transfer,
reorganization,
receivership or moratorium, (B) other laws relating to or affecting
the
rights of creditors generally, or (C) general equity principles
(regardless of whether such enforcement is considered in a
proceeding in
equity or at law).
(iii) The execution and delivery of this Agreement by the Seller
and
the
Seller's performance and compliance with the terms of this
Agreement
will not (A) violate
the Seller's charter or bylaws, (B) violate any law
or
regulation or any administrative decree or order to which it is
subject or (C) constitute a default (or an event which, with notice
or
lapse of time, or both, would constitute a default) under, or
result in
the
breach of, any material contract, agreement or other instrument
to
which the Seller is a party or by which the Seller is bound,
which
default might have consequences that would, in the Seller's
reasonable
and
good faith judgment, materially and adversely affect the
condition
(financial or other) or operations of the Seller or its properties
or
materially and adversely affect its performance hereunder.
(iv) The Seller is not
in default with respect to any order or
decree of any court or any order, regulation or demand of any
federal,
state, municipal or other governmental agency or body, which
default
might have consequences that would, in the Seller's reasonable and
good
faith judgment, materially and adversely affect the condition
(financial
or
other) or operations of the Seller or its properties or materially
and
adversely affect its performance hereunder.
(v) The Seller
is not a party to or bound by any agreement or
instrument or subject to any charter, bylaws or any other
corporate
restriction or any judgment, order, writ, injunction, decree, law
or
regulation that would, in the Seller's reasonable and good
faith
judgment, materially and adversely affect the ability of the Seller
to
perform its obligations under this Agreement or that requires the
consent
of
any third person to the execution of this Agreement or the
performance
by
the Seller of its obligations under this Agreement (except to
the
extent such consent has been obtained).
(vi) No consent,
approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and
performance by the Seller of or compliance by the Seller with
this
Agreement or the consummation of the transactions
6
<PAGE>
contemplated by this Agreement except as have previously been
obtained,
and no bulk sale law
applies to such transactions.
(vii) None of the sale of the Mortgage Loans by the Seller, the
transfer of the Mortgage Loans to the Trustee, and the
execution,
delivery or performance of this Agreement by the Seller, results or
will
result in the creation or imposition of any lien on any of the
Seller's
assets or property that would have a material adverse effect upon
the
Seller's ability to perform its duties and obligations under
this
Agreement or materially impair the ability of the Purchaser to
realize on
the
Mortgage Loans.
(viii) There is no action, suit, proceeding or investigation
pending
or
to the knowledge of the Seller, threatened against the Seller in
any
court or by or before any other governmental agency or
instrumentality
which would, in the Seller's good faith and reasonable judgment,
prohibit
its
entering into this Agreement or materially and adversely affect
the
validity of this Agreement or the performance by the Seller of
its
obligations under this Agreement.
(ix) Under generally
accepted accounting principles ("GAAP") and for
federal income tax purposes, the Seller will report the transfer of
the
Mortgage Loans to the Purchaser as a sale of the Mortgage Loans to
the
Purchaser in exchange for consideration consisting of a cash amount
equal
to
the Purchase Consideration. The consideration received by the
Seller
upon
the sale of the Mortgage Loans to the Purchaser will constitute
at
least reasonably equivalent value and fair consideration for the
Mortgage
Loans. The Seller will be solvent at all relevant times prior to,
and
will
not be rendered insolvent by, the sale of the Mortgage Loans to
the
Purchaser. The Seller is not selling the Mortgage Loans to the
Purchaser
with
any intent to hinder, delay or defraud any of the creditors of
the
Seller.
(b) The Seller
hereby makes the representations and warranties
contained in Schedule I hereto for the benefit of the Purchaser and
the
Trustee for the benefit of the Certificateholders as of the Closing
Date
(unless a different date is specified therein), with respect to
(and solely
with respect to) each Mortgage Loan, subject, however, to the
exceptions set
forth on Annex A to Schedule I of this Agreement.
(c) If the
Seller discovers or receives written notice of a Document
Defect or a Breach relating to a Mortgage Loan pursuant to Section
2.03(a) of
the Pooling and Servicing Agreement, then the Seller shall, not
later than 90
days from such discovery or receipt of such notice (or, in the case
of a
Document Defect or Breach relating to a Mortgage Loan not being a
"qualified
mortgage" within the meaning of the REMIC Provisions (a "Qualified
Mortgage"),
not later than 90 days from any party to the Pooling and Servicing
Agreement
discovering such Document Defect or Breach, provided the Seller
receives such
notice in a timely manner), if such Document Defect or Breach
materially and
adversely affects the value of the related Mortgage Loan or the
interests of
the Certificateholders therein, cure such Document Defect or
Breach, as the
case may be, in all material respects, which shall include payment
of losses
and any Additional Trust Fund Expenses associated therewith or, if
such
Document Defect or Breach (other than omissions due solely to a
document not
having been returned by the related recording office) cannot be
cured within
such 90-day period, (i) repurchase the affected Mortgage Loan
7
<PAGE>
(which, for the purposes of this clause (i), shall include an REO
Loan) at the
applicable Purchase Price (as defined in the Pooling and Servicing
Agreement)
not later than the end of such 90-day period or (ii) substitute a
Qualified
Substitute Mortgage Loan for such affected Mortgage Loan (which,
for purposes
of this clause (ii), shall include an REO Loan) not later than the
end of such
90-day period (and in no event later than the second anniversary of
the
Closing Date) and pay the Master Servicer for deposit into the
Collection
Account any Substitution Shortfall Amount in connection therewith;
provided,
however, that, unless the Document Defect or Breach would cause the
Mortgage
Loan not to be a Qualified Mortgage, if such Document Defect or
Breach is
capable of being cured but not within such 90-day period and the
Seller has
commenced and is diligently proceeding with the cure of such
Document Defect
or Breach within such 90-day period, the Seller shall have an
additional 90
days to complete such cure (or, failing such cure, to repurchase or
substitute
the related Mortgage Loan (which, for purposes of such repurchase
or
substitution, shall include an REO Loan)); and provided, further,
that with
respect to such additional 90-day period, the Seller shall have
delivered an
officer's certificate to the Trustee setting forth the reason(s)
such Document
Defect or Breach is not capable of being cured within the initial
90-day
period and what actions the Seller is pursuing in connection with
the cure
thereof and stating that the Seller anticipates that such Document
Defect or
Breach will be cured within the additional 90-day period; and
provided,
further, that no Document Defect (other than with respect to a
Specially
Designated Mortgage Loan Document) shall be considered to
materially and
adversely affect the interests of the Certificateholders or the
value of the
related Mortgage Loan unless the document with respect to which the
Document
Defect exists is required in connection with an imminent
enforcement of the
mortgagee's rights or remedies under the related Mortgage Loan,
defending any
claim asserted by any borrower or third party with respect to the
Mortgage
Loan, establishing the validity or priority of any lien on any
collateral
securing the Mortgage Loan or for any immediate servicing
obligations.
A Document Defect or Breach (which Document Defect or Breach
materially and adversely affects the value of the related Mortgage
Loan or the
interests of the Certificateholders therein) as to a Mortgage Loan
that is
cross-collateralized and cross-defaulted with one or more other
Mortgage Loans
(each, a "Crossed Loan" and such Crossed Loans, collectively, a
"Crossed Loan
Group"), which Document Defect or Breach does not constitute a
Document Defect
or Breach, as the case may be, as to any other Crossed Loan in such
Crossed
Loan Group (without regard to this paragraph) and is not cured as
provided for
above, shall be deemed to constitute a Document Defect or Breach,
as the case
may be, as to each other Crossed Loan in the subject Crossed Loan
Group for
purposes of this paragraph and the Seller shall be required to
repurchase or
substitute all such Crossed Loans unless (1) the weighted average
debt service
coverage ratio for all the remaining Crossed Loans for the four
calendar
quarters immediately preceding such repurchase or substitution is
not less
than the weighted average debt service coverage ratio for all such
Crossed
Loans, including the affected Crossed Loan, for the four calendar
quarters
immediately preceding such repurchase or substitution, and (2) the
weighted
average loan to-value ratio for the remaining Crossed Loans
determined at the
time of repurchase or substitution based upon an appraisal obtained
by the
Special Servicer at the expense of the Seller shall not be greater
than the
weighted average loan-to-value ratio for all such Crossed Loans,
including the
affected Crossed Loan determined at the time of repurchase or
substitution
based upon an appraisal obtained by the Special Servicer at the
expense of the
Seller; provided, that if such debt service coverage and
loan-to-value
criteria are satisfied, any other Crossed Loan (that is not the
Crossed Loan
directly affected by the subject Document Defect or Breach), shall
be released
8
<PAGE>
from its cross-collateralization and cross-default provision so
long as such
Crossed Loan (that is not the Crossed Loan directly affected by the
subject
Document Defect or Breach) is held in the Trust Fund; and provided,
further,
that the repurchase or replacement of less than all such Crossed
Loans and the
release of any Crossed Loan from a cross-collateralization and
cross-default
provision shall be further subject to (i) the delivery by the
Seller to the
Trustee, at the expense of the Seller, of an Opinion of Counsel to
the effect
that such release would not cause either of REMIC I or REMIC II to
fail to
qualify as a REMIC under the Code or result in the imposition of
any tax on
"prohibited transactions" or "contributions" after the Startup Day
under the
REMIC Provisions and (ii) the consent of the Controlling Class
Representative
(if one is then acting), which consent shall not be unreasonably
withheld or
delayed. In the event that one or more of such other Crossed Loans
satisfy the
aforementioned criteria, the Seller may elect either to repurchase
or
substitute for only the affected Crossed Loan as to which the
related Document
Defect or Breach exists or to repurchase or substitute for all of
the Crossed
Loans in the related Crossed Loan Group. All documentation relating
to the
termination of the cross-collateralization provisions of a Crossed
Loan being
repurchased shall be prepared at the expense of the Seller and,
where
required, with the consent of the related borrower. For a period of
two years
from the Closing Date, so long as there remains any Mortgage File
relating to
a Mortgage Loan as to which there is any uncured Document Defect or
Breach
known to the Seller, the Seller shall provide, once every ninety
days, the
officer's certificate to the Trustee described above as to the
reason(s) such
Document Defect or Breach remains uncured and as to the actions
being taken to
pursue cure; provided, however, that, without limiting the effect
of the
foregoing provisions of this Section 3(c), if such Document Defect
or Breach
shall materially and adversely affect the value of such Mortgage
Loan or the
interests of the holders of the Certificates therein (subject to
the last
proviso in the sole sentence of the preceding paragraph), the
Seller shall in
all cases on or prior to the second anniversary of the Closing Date
either
cause such Document Defect or Breach to be cured or repurchase or
substitute
for the affected Mortgage Loan. The delivery of a commitment to
issue a policy
of lender's title insurance as described in representation 8 set
forth on
Schedule I hereto in lieu of the delivery of the actual policy of
lender's
title insurance shall not be considered a Document Defect or Breach
with
respect to any Mortgage File if such actual policy of insurance is
delivered
to the Trustee or a Custodian on its behalf not later than the 90th
day
following the Closing Date.
To the extent that the Seller is required to repurchase or
substitute for a Crossed Loan hereunder in the manner prescribed
above in this
Section 3(c) while the Trustee continues to hold any other Crossed
Loans in
such Crossed Loan Group, the Seller and the Purchaser shall not
enforce any
remedies against the other's Primary Collateral (as defined below),
but each
is permitted to exercise remedies against the Primary Collateral
securing its
respective Crossed Loan(s), so long as such exercise does not
materially
impair the ability of the other party to exercise its remedies
against the
Primary Collateral securing the Crossed Loan(s) held thereby.
If the exercise by one party would materially impair the ability
of
the other party to exercise its remedies with respect to the
Primary
Collateral securing the Crossed Loan(s) held by such party, then
the Seller
and the Purchaser shall forbear from exercising such remedies until
the
Mortgage Loan documents evidencing and securing the relevant
Crossed Loans can
be modified in a manner consistent with this Agreement to remove
the threat of
material impairment as a result of the exercise of remedies. Any
reserve or
other cash collateral or letters of credit securing the Crossed
Loans shall be
allocated between such Crossed Loans in accordance with
9
<PAGE>
the Mortgage Loan documents, or, if the related Mortgage Loan
documents do not
so provide, then on a pro rata basis based upon their outstanding
Stated
Principal Balances. Notwithstanding the foregoing, if a Crossed
Loan is
modified to terminate the related cross-collateralization and/or
cross-default
provisions, the Seller shall furnish to the Trustee an Opinion of
Counsel that
such modification shall not cause an Adverse REMIC Event.
For purposes hereof, "Primary Collateral" shall mean the
Mortgaged
Property directly securing a Crossed Loan and excluding any
property as to
which the related lien may only be foreclosed upon by exercise
of
cross-collateralization provisions of such Mortgage Loans.
Notwithstanding any of the foregoing provisions of this Section
3(c), if there is a Document Defect or Breach (which Document
Defect or Breach
materially and adversely affects the value of the related Mortgage
Loan or the
interests of the Certificateholders therein) with respect to one or
more
Mortgaged Properties with respect to a Mortgage Loan, the Seller
shall not be
obligated to repurchase or substitute the Mortgage Loan if (i) the
affected
Mortgaged Property(ies) may be released pursuant to the terms of
any partial
release provisions in the related Mortgage Loan documents (and such
Mortgaged
Property(ies) are, in fact, released), (ii) the remaining
Mortgaged
Property(ies) satisfy the requirements, if any, set forth in the
Mortgage Loan
documents and the Seller provides an opinion of counsel to the
effect that
such release would not cause either of REMIC I or REMIC II to fail
to qualify
as a REMIC under the Code or result in the imposition of any tax
on
"prohibited transactions" or "contributions" after the Startup Day
under the
REMIC Provisions and (iii) each Rating Agency then rating the
Certificates
shall have provided written confirmation that such release would
not cause the
then-current ratings of the Certificates rated by it to be
qualified,
downgraded or withdrawn.
The foregoing provisions of this Section 3(c) notwithstanding,
the
Purchaser's sole remedy (subject to the last sentence of this
paragraph) for a
breach of representation 30 set forth on Schedule I hereto shall be
the cure
of such breach by the Seller, which cure shall be effected through
the payment
by the Seller of such costs and expenses (without regard to whether
such costs
and expenses are material or not) specified in such representation
that have
not, at the time of such cure, been received by the Master Servicer
or the
Special Servicer from the related Mortgagor and not a repurchase
or
substitution of the related Mortgage Loan. Following the Seller's
remittance
of funds in payment of such costs and expenses, the Seller shall be
deemed to
have cured the breach of representation 30 in all respects. To the
extent any
fees or expenses that are the subject of a cure by the Seller are
subsequently
obtained from the related Mortgagor, the cure payment made by the
Seller shall
be returned to the Seller. Notwithstanding the prior provisions of
this
paragraph, the Seller, acting in its sole discretion, may effect a
repurchase
or substitution (in accordance with the provisions of this Section
3(c)
setting forth the manner in which a Mortgage Loan may be
repurchased or
substituted) of a Mortgage Loan, as to which representation 30 set
forth on
Schedule I has been breached, in lieu of paying the costs and
expenses that
were the subject of the breach of representation 30 set forth on
Schedule I.
(d) In
connection with any permitted repurchase or substitution of
one or more Mortgage Loans contemplated hereby, upon receipt of a
certificate
from a Servicing Officer certifying as to the receipt of the
applicable
Purchase Price (as defined in the Pooling and Servicing Agreement)
or
Substitution Shortfall Amount(s), as applicable, in the
Collection
10
<PAGE>
Account, and, if applicable, the delivery of the Mortgage File(s)
and the
Servicing File(s) for the related Qualified Substitute Mortgage
Loan(s) to the
Custodian and the Master Servicer, respectively, (i) the Trustee
shall be
required to execute and deliver such endorsements and assignments
as are
provided to it by the Master Servicer or the Seller, in each case
without
recourse, representation or warranty, as shall be necessary to vest
in the
Seller the legal and beneficial ownership of each repurchased
Mortgage Loan or
substituted Mortgage Loan, as applicable, (ii) the Trustee, the
Custodian, the
Master Servicer and the Special Servicer shall each tender to the
Seller, upon
delivery to each of them of a receipt executed by the Seller, all
portions of
the Mortgage File and other documents pertaining to such Mortgage
Loan
possessed by it, and (iii) the Master Servicer and the Special
Servicer shall
release to the Seller any Escrow Payments and Reserve Funds held by
it in
respect of such repurchased or deleted Mortgage Loan(s).
At the time a substitution is made, the Seller shall deliver
the
related Mortgage File to the Trustee and certify that the
substitute Mortgage
Loan is a Qualified Substitute Mortgage Loan.
No substitution of a Qualified Substitute Mortgage Loan or
Qualified
Substitute Mortgage Loans may be made in any calendar month after
the
Determination Date for such month. Periodic Payments due with
respect to any
Qualified Substitute Mortgage Loan after the related date of
substitution
shall be part of REMIC I, as applicable. No substitution of a
Qualified
Substitute Mortgage Loan for a deleted Mortgage Loan shall be
permitted under
this Agreement if, after such substitution, the aggregate of the
Stated
Principal Balances of all Qualified Substitute Mortgage Loans which
have been
substituted for deleted Mortgage Loans exceeds 10% of the aggregate
Cut-off
Date Balance of all the Mortgage Loans and the Other Mortgage
Loans. Periodic
Payments due with respect to any Qualified Substitute Mortgage Loan
on or
prior to the related date of substitution shall not be part of the
Trust Fund
or REMIC I.
(e) This Section
3 provides the sole remedies available to the
Purchaser, the Certificateholders, or the Trustee on behalf of
the
Certificateholders, respecting any Document Defect in a Mortgage
File or any
Breach of any representation or warranty set forth in or required
to be made
pursuant to Section 3 of this Agreement.
SECTION 4. Representations, Warranties and Covenants of the
Purchaser. In order to induce the Seller to enter into this
Agreement, the
Purchaser hereby represents, warrants and covenants for the benefit
of the
Seller as of the date hereof that:
(a) The
Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of the State of Delaware and
the Purchaser
has taken all necessary corporate action to authorize the
execution, delivery
and performance of this Agreement by it, and has the power and
authority to
execute, deliver and perform this Agreement and all transactions
contemplated
hereby.
(b) This
Agreement has been duly and validly authorized, executed
and delivered by the Purchaser, all requisite action by the
Purchaser's
directors and officers has been taken in connection therewith, and
(assuming
the due authorization, execution and delivery
11
<PAGE>
hereof by the Seller) this Agreement constitutes the valid, legal
and binding
agreement of the Purchaser, enforceable against the Purchaser in
accordance
with its terms, except as such enforcement may be limited by (A)
laws relating
to bankruptcy, insolvency, fraudulent transfer, reorganization,
receivership
or moratorium, (B) other laws relating to or affecting the rights
of creditors
generally, or (C) general equity principles (regardless of whether
such
enforcement is considered in a proceeding in equity or at law).
(c) The
execution and delivery of this Agreement by the Purchaser
and the Purchaser's performance and compliance with the terms of
this
Agreement will not (A) violate the Purchaser's articles of
incorporation or
bylaws, (B) violate any law or regulation or any administrative
decree or
order to which it is subject or (C) constitute a default (or an
event which,
with notice or lapse of time, or both, would constitute a default)
under, or
result in the breach of, any material contract, agreement or other
instrument
to which the Purchaser is a party or by which the Purchaser is
bound, which
default might have consequences that would, in the Purchaser's
reasonable and
good faith judgment, materially and adversely affect the condition
(financial
or other) or operations of the Purchaser or its properties or
have
consequences that would materially and adversely affect its
performance
hereunder.
(d) The
Purchaser is not a party to or bound by any agreement or
instrument or subject to any articles of association, bylaws or any
other
corporate restriction or any judgment, order, writ, injunction,
decree, law or
regulation that would, in the Purchaser's reasonable and good faith
judgment,
materially and adversely affect the ability of the Purchaser to
perform its
obligations under this Agreement or that requires the consent of
any third
person to the execution of this Agreement or the performance by the
Purchaser
of its obligations under this Agreement (except to the extent such
consent has
been obtained).
(e) Except as may be required under federal or state securities
laws
(and which will be obtained on a timely basis), no consent,
approval,
authorization or order of, registration or filing with, or notice
to, any
governmental authority or court, is required, under federal or
state law, for
the execution, delivery and performance by the Purchaser of, or
compliance by
the Purchaser with, this Agreement, or the consummation by the
Purchaser of
any transaction described in this Agreement.
(f) Under GAAP
and for federal income tax purposes, the Purchaser
will report the transfer of the Mortgage Loans by the Seller to the
Purchaser
as a sale of the Mortgage Loans to the Purchaser in exchange for
consideration
consisting of a cash amount equal to the aggregate Purchase
Consideration.
(g) There is no
action, suit, proceeding or investigation pending or
to the knowledge of the Purchaser, threatened against the Purchaser
in any
court or by or before any other governmental agency or
instrumentality which
would materially and adversely affect the validity of this
Agreement or any
action taken in connection with the obligations of the Purchaser
contemplated
herein, or which would be likely to impair materially the ability
of the
Purchaser to enter into and/or perform under the terms of this
Agreement.
(h) The
Purchaser is not in default with respect to any order or
decree of any court or any order, regulation or demand of any
federal, state,
municipal or other governmental
12
<PAGE>
agency or body, which default might have consequences that would,
in the
Purchaser's reasonable and good faith judgment, materially and
adversely
affect the condition (financial or other) or operations of the
Purchaser or
its properties or might have consequences that would materially and
adversely
affect its performance hereunder.
SECTION 5. Closing. The closing of the sale of the Mortgage
Loans
(the "Closing") shall be held at the offices of Sidley Austin Brown
& Wood LLP
on the Closing Date. The Closing shall be subject to each of the
following
conditions:
(a) All of the
representations and warranties of the Seller set
forth in or made pursuant to Sections 3(a) and 3(b) of this
Agreement and all
of the representations and warranties of the Purchaser set forth in
Section 4
of this Agreement shall be true and correct in all material
respects as of the
Closing Date;
(b) All
documents specified in Section 6 of this Agreement (the
"Closing Documents"), in such forms as are agreed upon and
acceptable to the
Purchaser, the Seller, the Underwriters and their respective
counsel in their
reasonable discretion, shall be duly executed and delivered by all
signatories
as required pursuant to the respective terms thereof;
(c) The Seller
shall have delivered and released to the Trustee (or
a Custodian on its behalf) and the Master Servicer, respectively,
all
documents represented to have been or required to be delivered to
the Trustee
and the Master Servicer pursuant to Section 2 of this
Agreement;
(d) All other
terms and conditions of this Agreement required to be
complied with on or before the Closing Date shall have been
complied with in
all material respects and the Seller and the Purchaser shall have
the ability
to comply with all terms and conditions and perform all duties and
obligations
required to be complied with or performed after the Closing
Date;
(e) The Seller
shall have paid all fees and expenses payable by it
to the Purchaser or otherwise pursuant to this Agreement as of the
Closing
Date;
(f) One or more
letters from the independent accounting firms of
Ernst & Young LLP and PricewaterhouseCoopers LLP, in form
satisfactory to the
Purchaser and relating to certain information regarding the
Mortgage Loans and
Certificates as set forth in the Prospectus and Prospectus
Supplement,
respectively; and
(g) The Seller
shall have executed and delivered concurrently
herewith that certain Indemnification Agreement, dated as of June
21, 2005,
among the Seller, Merrill Lynch Mortgage Lending, Inc., Countrywide
Commercial
Real Estate Finance, Inc., the Purchaser, the Underwriters and the
Initial
Purchasers. Both parties agree to use their best reasonable efforts
to perform
their respective obligations hereunder in a manner that will enable
the
Purchaser to purchase the Mortgage Loans on the Closing Date.
SECTION 6. Closing Documents. The Closing Documents shall consist
of
the following:
13
<PAGE>
(a) (i) This
Agreement duly executed by the Purchaser and the
Seller, (ii) the Pooling and Servicing Agreement duly executed by
the parties
thereto and (iii) the Servicing Rights Purchase Agreement, dated as
of June
29, 2005, between the Seller and Midland Loan Services, Inc., duly
executed by
such parties;
(b) An officer's
certificate of the Seller, executed by a duly
authorized officer of the Seller and dated the Closing Date, and
upon which
the Purchaser, the Underwriters and the Initial Purchasers may
rely, to the
effect that: (i) the representations and warranties of the Seller
in this
Agreement are true and correct in all material respects at and as
of the
Closing Date with the same effect as if made on such date; and (ii)
the Seller
has, in all material respects, complied with all the agreements and
satisfied
all the conditions on its part that are required under this
Agreement to be
performed or satisfied at or prior to the Closing Date;
(c) An officer's
certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and
upon which the
Purchaser may rely, to the effect that each individual who, as an
officer or
representative of the Seller, signed this Agreement, the
Indemnification
Agreement or any other document or certificate delivered on or
before the
Closing Date in connection with the transactions contemplated
herein or
therein, was at the respective times of such signing and delivery,
and is as
of the Closing Date, duly elected or appointed, qualified and
acting as such
officer or representative, and the signatures of such persons
appearing on
such documents and certificates are their genuine signatures;
(d) An officer's
certificate from an officer of the Seller (signed
in his/her capacity as an officer), dated the Closing Date, and
upon which the
Purchaser, the Underwriters and Initial Purchasers may rely, to the
effect
that (i) such officer has carefully examined the Specified Portions
(as
defined below) of the Prospectus Supplement and nothing has come to
his
attention that would lead him to believe that the Specified
Portions of the
Prospectus Supplement, as of the date of the Prospectus Supplement
or as of
the Closing Date, included or include any untrue statement of a
material fact
relating to the Mortgage Loans or omitted or omit to state therein
a material
fact necessary in order to make the statements therein relating to
the
Mortgage Loans, in light of the circumstances under which they were
made, not
misleading, and (ii) such officer has carefully examined the
Specified
Portions of the Private Placement Memorandum, dated as of June 21,
2005 (the
"Memorandum") (pursuant to which certain classes of the Private
Certificates
are being privately offered) and nothing has come to his attention
that would
lead him to believe that the Specified Portions of the Memorandum,
as of the
date thereof or as of the Closing Date, included or include any
untrue
statement of a material fact relating to the Mortgage Loans or
omitted or omit
to state therein a material fact necessary in order to make the
statements
therein related to the Mortgage Loans, in the light of the
circumstances under
which they were made, not misleading. The "Specified Portions" of
the
Prospectus Supplement shall consist of Annex A-1 thereto, entitled
"Certain
Characteristics of the Mortgage Loans" (insofar as the information
contained
in Annex A-1 relates to the Mortgage Loans sold by the Seller
hereunder),
Annex A-2 to the Prospectus Supplement, entitled "Certain
Statistical
Information Regarding the Mortgage Loans" (insofar as the
information
contained in Annex A-2 relates to the Mortgage Loans sold by the
Seller
hereunder), Annex B to the Prospectus Supplement entitled
"Certain
Characteristics Regarding Multifamily Properties" (insofar as the
information
contained in Annex B relates to the Mortgage Loans sold by the
Seller
hereunder), Annex C to the Prospectus Supplement, entitled
"Structural and
Collateral
14
<PAGE>
Term Sheet" (insofar as the information contained in Annex C
relates to the
Mortgage Loans sold by the Seller hereunder), the diskette which
accompanies
the Prospectus Supplement (insofar as such diskette is consistent
with Annex
A-1, Annex A-2 and/or Annex B), and the following sections of the
Prospectus
Supplement (only to the extent that any such information relates to
the Seller
or the Mortgage Loans sold by the Seller hereunder and exclusive of
any
statements in such sections that purport to describe the servicing
and
administration provisions of the Pooling and Servicing Agreement
and exclusive
of aggregated numerical information that includes the Other
Mortgage Loans):
"Summary of Prospectus Supplement--Relevant Parties--Mortgage Loan
Sellers,"
"Summary of Prospectus Supplement--The Mortgage Loans And The
Mortgaged Real
Properties," "Risk Factors" and "Description of the Mortgage Pool".
The
"Specified Portions" of the Memorandum shall consist of the
Specified Portions
of the Prospectus Supplement (as attached as an exhibit to the
Memorandum);
(e) Each of: (i)
the resolutions of the Seller's board of directors
or a committee thereof authorizing the Seller's entering into the
transactions
contemplated by this Agreement, (ii) the charter and bylaws of the
Seller, and
(iii) a certificate of corporate existence of the Seller issued by
the Office
of the Comptroller of the Currency not earlier than thirty (30)
days prior to
the Closing Date;
(f) A written
opinion of counsel for the Seller relating to
corporate and enforceability matters (which opinion may be from
in-house
counsel, outside counsel or a combination thereof), reasonably
satisfactory to
the Purchaser, its counsel and the Rating Agencies, dated the
Closing Date and
addressed to the Purchaser, the Trustee, the Underwriters, the
Initial
Purchasers and each of the Rating Agencies, together with such
other written
opinions, including as to insolvency matters, as may be required by
the Rating
Agencies; and
(g) Such further
certificates, opinions and documents as the
Purchaser may reasonably request prior to the Closing Date.
SECTION 7. Costs. Whether or not this Agreement is terminated,
both
the Seller and the Purchaser shall pay their respective share of
the
transaction expenses incurred in connection with the transactions
contemplated
herein as set forth in the closing statement prepared by the
Purchaser and
delivered to and approved by the Seller on or before the Closing
Date, and in
the memorandum of understanding to which the Seller and the
Purchaser (or
affiliates thereof) are parties with respect to the transactions
contemplated
by this Agreement.
SECTION 8. Grant of a Security Interest. It is the express intent
of
the parties hereto that the conveyance of the Mortgage Loans by the
Seller to
the Purchaser as provided in Section 2 of this Agreement be, and be
construed
as, a sale of the Mortgage Loans by the Seller to the Purchaser and
not as a
pledge of the Mortgage Loans by the Seller to the Purchaser to
secure a debt
or other obligation of the Seller. However, if, notwithstanding
the
aforementioned intent of the parties, the Mortgage Loans are held
to be
property of the Seller, then, (a) it is the express intent of the
parties that
such conveyance be deemed a pledge of the Mortgage Loans by the
Seller to the
Purchaser to secure a debt or other obligation of the Seller, and
(b) (i) this
Agreement shall also be deemed to be a security agreement within
the meaning
of Article 9 of the UCC of the applicable jurisdiction; (ii) the
conveyance
provided for in Section 2 of this Agreement shall be deemed to be a
grant by
the Seller to the Purchaser of a security interest in
15
<PAGE>
all of the Seller's right, title and interest in and to the
Mortgage Loans,
and all amounts payable to the holder of the Mortgage Loans in
accordance with
the terms thereof, and all proceeds of the conversion, voluntary
or
involuntary, of the foregoing into cash, instruments, securities or
other
property, including without limitation, all amounts, other than
investment
earnings (other than investment earnings required by Section
3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest
Shortfalls),
from time to time held or invested in the Collection Account, the
Distribution
Account or, if established, the REO Account whether in the form of
cash,
instruments, securities or other property; (iii) the assignment to
the Trustee
of the interest of the Purchaser as contemplated by Section 1 of
this
Agreement shall be deemed to be an assignment of any security
interest created
hereunder; (iv) the possession by the Trustee or any of its agents,
including,
without limitation, the Custodian, of the Mortgage Notes, and such
other items
of property as constitute instruments, money, negotiable documents
or chattel
paper shall be deemed to be possession by the secured party for
purposes of
perfecting the security interest pursuant to Section 9-313 of the
UCC of the
applicable jurisdiction; and (v) notifications to persons (other
than the
Trustee) holding such property, and acknowledgments, receipts or
confirmations
from persons (other than the Trustee) holding such property, shall
be deemed
notifications to, or acknowledgments, receipts or confirmations
from,
financial intermediaries, bailees or agents (as applicable) of the
secured
party for the purpose of perfecting such security interest under
applicable
law. The Seller and the Purchaser shall, to the extent consistent
with this
Agreement, take such actions as may be necessary to ensure that, if
this
Agreement were deemed to create a security interest in the Mortgage
Loans,
such security interest would be deemed to be a perfected security
interest of
first priority under applicable law and will be maintained as such
throughout
the term of this Agreement and the Pooling and Servicing Agreement.
The Seller
does hereby consent to the filing by the Purchaser of financing
statements
relating to the transactions contemplated hereby without the
signature of the
Seller.
SECTION 9. Notices. All notices, copies, requests, consents,
demands
and other communications required hereunder shall be in writing and
sent by
facsimile or delivered to the intended recipient at the "Address
for Notices"
specified beneath its name on the signature pages hereof or, as to
either
party, at such other address as shall be designated by such party
in a notice
hereunder to the other party. Except as otherwise provided in this
Agreement,
all such communications shall be deemed to have been duly given
when
transmitted by facsimile or personally 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
16
<PAGE>
extent of such prohibition or unenforceability without invalidating
the
remaining provisions hereof, and any such prohibition or
unenforceability in
any particular jurisdiction shall not invalidate or render
unenforceable such
provision in any other jurisdiction. To the extent permitted by
applicable
law, the parties hereto waive any provision of law that prohibits
or renders
void or unenforceable any provision hereof.
SECTION 12. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an original, but
which together
shall constitute one and the same agreement.
SECTION 13. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS,
DUTIES,
OBLIGATIONS AND RESPONSIBILITIES OF THE PARTIES HERETO SHALL BE
GOVERNED IN
ACCORDANCE WITH THE INTERNAL LAWS AND DECISIONS OF NEW YORK. THE
PARTIES
HERETO INTEND THAT THE PROVISIONS OF SECTION 5-1401 OF THE NEW YORK
GENERAL
OBLIGATIONS LAW SHALL APPLY TO THIS AGREEMENT.
SECTION 14. Attorneys' Fees. If any legal action, suit or
proceeding
is commenced between the Seller and the Purchaser regarding their
respective
rights and obligations under this Agreement, the prevailing party
shall be
entitled to recover, in addition to damages or other relief, costs
and
expenses, attorneys' fees and court costs (including, without
limitation,
expert witness fees). As used herein, the term "prevailing party"
shall mean
the party that obtains the principal relief it has sought, whether
by
compromise settlement or judgment. If the party that commenced or
instituted
the action, suit or proceeding shall dismiss or discontinue it
without the
concurrence of the o
