EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of March
21, 2005 (this
"Agreement"), is entered into between Merrill Lynch Mortgage
Lending, Inc. (the
"Seller") and Merrill Lynch Mortgage Investors, Inc. (the
"Purchaser").
The Seller intends to sell and the Purchaser intends to
purchase
certain multifamily, commercial and manufactured housing community
mortgage
loans (the "Mortgage Loans") identified on the schedule (the
"Mortgage Loan
Schedule") annexed hereto as Schedule II. The Purchaser intends to
deposit the
Mortgage Loans, along with certain other mortgage loans (the "Other
Mortgage
Loans"), into a trust fund (the "Trust Fund"), the beneficial
ownership of which
will be evidenced by multiple classes of mortgage pass-through
certificates (the
"Certificates"). One or more "real estate mortgage investment
conduit" ("REMIC")
elections will be made with respect to most of the Trust Fund. The
Trust Fund
will be created and the Certificates will be issued pursuant to a
Pooling and
Servicing Agreement, dated as of March 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"),
Clarion Partners, LLC, 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 (the "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
March 21, 2005 (the "Underwriting Agreement"), with Merrill Lynch,
Pierce,
Fenner & Smith Incorporated ("Merrill Lynch"), for itself and
as representative
of Banc of America Securities LLC ("Banc of America"), KeyBanc
Capital Markets,
a Division of McDonald Investments Inc. ("McDonald Investments"),
J.P. Morgan
Securities Inc. ("JPMorgan") and Morgan Stanley & Co.
Incorporated ("Morgan
Stanley"; Merrill Lynch, Banc of America, McDonald Investments,
JPMorgan and
Morgan Stanley, 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 March 21, 2005 (the
"Certificate
Purchase Agreement"), with Merrill Lynch, for itself and as
representative of
Banc of America (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
$724,539,913 (the "Merrill Mortgage Loan Balance") (subject to a
variance of
plus or minus 5.0%) as of the close of business on the Cut-off
Date, after
giving effect to any payments due on or before such date, whether
or not such
payments are received. The Merrill Mortgage Loan Balance, together
with the
aggregate principal balance of the Other Mortgage Loans as of the
Cut-off Date
(after giving effect to any payments due on or before such date,
whether or not
such payments are received), is expected to equal an aggregate
principal balance
(the "Cut-off Date Pool Balance") of $1,137,261,494 (subject to a
variance of
plus or minus 5%). The purchase and sale of the Mortgage Loans
shall take place
on March 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)
101.3477% of the
Merrill Mortgage Loan Balance as of the Cut-off Date, plus (ii)
$3,215,777,
which amount represents the amount of interest accrued on the
Merrill Mortgage
Loan Balance at the related Net Mortgage Rate for the period from
and including
the Cut-off Date up to but not including the Closing Date.
The Purchase Consideration shall be paid to the Seller or
its designee
by wire transfer in immediately available funds on the Closing
Date.
SECTION 2. Conveyance of Mortgage Loans.
(a) Effective as of the Closing Date, subject only to
receipt of the
Purchase Consideration, the Seller does hereby sell, transfer,
assign, set over
and otherwise convey to the Purchaser, without recourse (except as
set forth in
this Agreement), all the right, title and interest of the Seller in
and to the
Mortgage Loans identified on the Mortgage Loan Schedule as of such
date, on a
servicing released basis, together with all of the Seller's right,
title and
interest in and to the proceeds of any related title, hazard,
primary mortgage
or other insurance proceeds. The Mortgage Loan Schedule, as it may
be amended,
shall conform to the requirements set forth in this Agreement and
the Pooling
and Servicing Agreement.
(b) The Purchaser or its assignee shall be entitled to
receive all
scheduled payments of principal and interest due after the Cut-off
Date, and all
other recoveries of principal and interest collected after the
Cut-off Date
(other than in respect of principal and interest on the Mortgage
Loans due on or
before the Cut-off Date). All scheduled payments of principal and
interest due
on or before the Cut-off Date but collected after the Cut-off Date,
and
recoveries of principal and interest collected on or before the
Cut-off Date
(only in respect of principal and interest on the Mortgage Loans
due on or
before the Cut-off Date and principal prepayments thereon), shall
belong to, and
be promptly remitted to, the Seller.
(c) The Seller hereby represents and warrants that it has
or will have,
on behalf of the Purchaser, delivered to the Trustee on or before
the Closing
Date, the documents and instruments specified below with respect to
each
Mortgage Loan (each, a "Mortgage File"). All Mortgage Files so
delivered will be
held by the Trustee in escrow at all times prior to the Closing
Date. Each
Mortgage File shall contain the following documents:
(i) the original executed Mortgage Note for such Mortgage
Loan,
including any power of attorney related to the execution
thereof (or a lost
note affidavit and 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
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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-MKB2,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MKB2, 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 a 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-MKB2,
Commercial Mortgage Pass-Through Certificates, Series
2005-MKB2, 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-MKB2,
Commercial
Mortgage Pass-Through Certificates, Series 2005-MKB2, or in
blank;
(vi) originals or copies of any consolidation, assumption,
substitution
and modification agreements in those instances where the terms
or provisions
of the Mortgage or Mortgage Note have been consolidated or
modified or the
subject Mortgage Loan has been assumed;
(vii) the original or a copy of the policy or certificate
of lender's
title insurance or, if such policy has not been issued or
located, an
original or copy of an irrevocable, binding commitment (which
may be a pro
forma policy or a marked version of the policy that has been
executed by an
authorized representative of the title company or an agreement
to provide
the same pursuant to binding escrow instructions executed by an
authorized
representative of the title company) to issue such title
insurance policy;
(viii) any filed copies or other evidence of filing of any
prior UCC
Financing Statements in favor of the originator of such
Mortgage Loan or in
favor of any assignee prior to the Trustee (but only to the
extent the
Seller had possession of such UCC
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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-MKB2, Commercial Mortgage Pass-Through
Certificates,
Series 2005-MKB2, 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 such
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 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).
4
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:
(i) The Seller is a corporation duly organized, validly
existing and in
good standing under the laws of the State of Delaware and the
Seller has
taken all necessary corporate action to authorize the
execution, delivery
and performance of this Agreement by it, and has the power and
authority to
execute, deliver and perform this Agreement and all
transactions
contemplated hereby.
(ii) This Agreement has been duly and validly authorized,
executed and
delivered by the Seller, all requisite action by the Seller's
directors and
officers has been
5
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 might
have consequences that would 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 might have
consequences that
would materially and adversely affect its performance
hereunder.
(v) The Seller is not a party to or bound by any agreement
or
instrument or subject to any certificate of incorporation,
bylaws or any
other corporate restriction or any judgment, order, writ,
injunction,
decree, law or regulation that would, in the Seller's
reasonable and good
faith judgment, materially and adversely affect the ability of
the Seller to
perform its obligations under this Agreement or that requires
the consent of
any third person to the execution of this Agreement or the
performance by
the Seller of its obligations under this Agreement (except to
the extent
such consent has been obtained).
(vi) No consent, approval, authorization or order of any
court or
governmental agency or body is required for the execution,
delivery and
performance by the Seller of or compliance by the Seller with
this Agreement
or the consummation of the transactions contemplated by this
Agreement
except as have previously been obtained, and no bulk sale law
applies to
such transactions.
(vii) None of the sale of the Mortgage Loans by the
Seller, the
transfer of the Mortgage Loans to the Trustee, and the
execution, delivery
or performance of this Agreement by the Seller, results or will
result in
the creation or imposition of any lien on any of the Seller's
assets or
property that would have a material adverse effect upon the
6
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 shall
materially
and adversely affect the value of the related Mortgage Loan or the
interests of
the Certificateholders therein, cure such Document Defect or
Breach, as the case
may be, in all material respects, which shall include payment of
losses and any
Additional Trust Fund Expenses associated therewith or, if such
Document Defect
or Breach (other than omissions due solely to a document not having
been
returned by the related recording office) cannot be cured within
such 90-day
period, (i) repurchase the affected Mortgage Loan (which, for the
purposes of
this clause (i), shall include an REO Loan) at the applicable
Purchase Price (as
defined in the Pooling and Servicing Agreement) not later than the
end of such
90-day period or (ii) substitute a Qualified Substitute Mortgage
Loan for such
affected Mortgage Loan (which, for purposes of this clause (ii),
shall include
an REO Loan) not later than the end of such 90-day period (and in
no event later
than the second anniversary of the Closing Date) and pay the Master
Servicer for
deposit into the Collection Account, any Substitution Shortfall
Amount in
connection therewith; provided, however, that, unless the breach
would cause the
Mortgage Loan
7
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 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"), and is not cured as provided for above, shall require the
repurchase or
substitution of 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 and any Crossed Loan (that is not the Crossed Loan
directly affected
by the subject Breach or Document Defect) is not so materially and
adversely
affected and therefore is not so repurchased or substituted, then
such Crossed
Loan shall be released from its cross-collateralization and
cross-default
provision so long as such Crossed Loan (that is not the Crossed
Loan directly
affected by the subject Breach or Document Defect) 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 subject to the delivery by the
Seller to
the Trustee, at the expense of the Seller, of an Opinion of Counsel
to the
effect that such release would not cause either of REMIC I or REMIC
II to fail
to qualify as a REMIC under the Code or result in the imposition of
any tax on
"prohibited transactions" or "contributions" after the Startup Day
under the
REMIC Provisions; and provided, further, that the Controlling Class
Representative shall have consented to the repurchase or
replacement of the
affected Crossed
8
Loan, which consent shall not be unreasonably withheld. 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
reasons 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 second preceding sentence), 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. Notwithstanding the foregoing, the delivery of a
commitment to
issue a policy of lender's title insurance as described in
representation 8 set
forth on Schedule I hereto in lieu of the delivery of the actual
policy of
lender's title insurance shall not be considered a Document Defect
or Breach
with respect to any Mortgage File if such actual policy of
insurance is
delivered to the Trustee or a Custodian on its behalf not later
than the 90th
day following the Closing Date.
To the extent that the Seller is required to repurchase or
substitute
for a Crossed Loan hereunder in the manner prescribed above in this
Section 3(c)
while the Trustee continues to hold any other Crossed Loans in such
Crossed Loan
Group, the Seller and the Purchaser shall not enforce any remedies
against the
other's Primary Collateral (as defined below), but each is
permitted to exercise
remedies against the Primary Collateral securing its respective
Crossed Loan(s),
so long as such exercise does not materially impair the ability of
the other
party to exercise its remedies against the Primary Collateral
securing the
Crossed Loan(s) held thereby.
If the exercise by one party would materially impair the
ability of the
other party to exercise its remedies with respect to the Primary
Collateral
securing the Crossed Loan(s) held by such party, then the Seller
and the
Purchaser shall forbear from exercising such remedies until the
Mortgage Loan
documents evidencing and securing the relevant Crossed Loans can be
modified in
a manner consistent with this Agreement to remove the threat of
material
impairment as a result of the exercise of remedies. Any reserve or
other cash
collateral or letters of credit securing the Crossed Loans shall be
allocated
between such Crossed Loans in accordance with the Mortgage Loan
documents, or
otherwise 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.
The foregoing provisions of this Section 3(c)
notwithstanding, the
Purchaser's sole remedy 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)
9
specified in such paragraph 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 of the related Mortgage Loan. 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.
(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 Purchase
Price (as defined
in the Pooling and Servicing Agreement) or Substitution Shortfall
Amount(s), as
applicable, in the Collection Account, and, if applicable, the
delivery of the
Mortgage File(s) and the Servicing File(s) for the related
Qualified Substitute
Mortgage Loan(s) to the Custodian and the Master Servicer,
respectively, (i) the
Trustee shall 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).
(e) This Section 3 provides the sole remedy 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).
10
(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 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.
11
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 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) A letter from the independent accounting firm of Ernst
& Young LLP
in form satisfactory to the Purchaser, 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 March 21, 2005,
among the
Seller, Bank of America, N.A., KeyBank National Association, the
Purchaser, the
Underwriters and the Initial Purchasers. Both parties agree to use
their best
efforts to perform their respective obligations hereunder in a
manner that will
enable the Purchaser to purchase the Mortgage Loans on the Closing
Date.
SECTION 6. Closing Documents. The Closing Documents shall
consist of
the following:
(a) (i) This Agreement duly executed by the Purchaser and
the Seller,
(ii) the Pooling and Servicing Agreement duly executed by the
parties thereto
and (iii) the Servicing Rights Purchase Agreement, dated as of
March 1, 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
12
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 March 21, 2005 (the "Memorandum") (pursuant
to which
certain classes of the Private Certificates are being privately
offered) and
nothing has come to his attention that would lead him to believe
that the
Specified Portions of the Memorandum, as of the date thereof or as
of the
Closing Date, included or include any untrue statement of a
material fact
relating to the Mortgage Loans or omitted or omit to state therein
a material
fact necessary in order to make the statements therein related to
the Mortgage
Loans, in the light of the circumstances under which they were
made, not
misleading. The "Specified Portions" of the Prospectus Supplement
shall consist
of Annex A-1 thereto, entitled "Certain Characteristics of the
Mortgage Loans"
(insofar as the information contained in Annex A-1 relates to the
Mortgage Loans
sold by the Seller hereunder), Annex A-2 to the Prospectus
Supplement, entitled
"Certain Statistical Information Regarding the Mortgage Loans"
(insofar as the
information contained in Annex A-2 relates to the Mortgage Loans
sold by the
Seller hereunder), Annex B to the Prospectus Supplement entitled
"Certain
Characteristics Regarding Multifamily Properties" (insofar as the
information
contained in Annex B relates to the Mortgage Loans sold by the
Seller
hereunder), Annex C to the Prospectus Supplement, entitled
"Structural and
Collateral Term Sheet" (insofar as the information contained in
Annex C relates
to the Mortgage Loans sold by the Seller hereunder), the diskette
which
accompanies the Prospectus Supplement (insofar as such diskette is
consistent
with Annex A-1, Annex A-2 and/or Annex B), and the following
sections of the
Prospectus Supplement (only to the extent that any such information
relates to
the Seller or the Mortgage Loans sold by the Seller hereunder and,
without
limitation, exclusive of any statements in such sections that
purport to
describe the servicing and administration provisions of the Pooling
and
Servicing Agreement): "Summary of Prospectus
13
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 Delaware not earlier than thirty (30) days prior to
the Closing
Date;
(f) A written opinion of counsel for the Seller (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 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 between the Seller and the Purchaser 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 hereof 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 hereof
shall be deemed to be a grant by the Seller to the Purchaser of a
security
interest in all of the Seller's right, title and interest in and to
the Mortgage
Loans, and all amounts payable to the holder of the Mortgage Loans
in accordance
with the terms thereof, and all proceeds of the conversion,
voluntary or
involuntary, of the foregoing into cash, instruments, securities or
other
property, including without limitation, all amounts, other than
investment
earnings (other than investment earnings required by Section
3.19(a) of the
Pooling and Servicing Agreement to offset Prepayment Interest
Shortfalls), from
time to time held or invested in the Collection Account, the
Distribution
Account or, if established, the REO Account whether in the form of
cash,
instruments, securities or other property; (iii) the assignment to
the Trustee
of the interest of the
14
Purchaser as contemplated by Section 1 hereof 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 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.
15
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 other
party, such other
party shall be deemed the prevailing party.
SECTION 15. Further Assurances. The Seller and the
Purchaser agree to
execute and deliver such instruments and take such further actions
as the other
party may, from time to time, reasonably request in order to
effectuate the
purposes and to carry out the terms of this Agreement.
SECTION 16. Successors and Assigns. The rights and
obligations of the
Seller under this Agreement shall not be assigned by the Seller
without the
prior written consent of the Purchaser, except that any person into
which the
Seller may be merged or consolidated, or any corporation resulting
from any
merger, conversion or consolidation to which the Seller is a party,
or any
person succeeding to all or substantially all of the business of
the Seller,
shall be the successor to the Seller hereunder. The Purchaser has
the right to
assign its interest under this Agreement, in whole or in part, as
may be
required to effect the purposes of the Pooling and Servicing
Agreement, and the
assignee shall, to the extent of such assignment, succeed to the
rights and
obligations hereunder of the Purchaser. Subject to the foregoing,
this Agreement
shall bind and inure to the benefit of and be enforceable by the
Seller, the
Purchaser, the Underwriters (as intended third party beneficiaries
hereof), the
Initial Purchasers (also as intended third party beneficiaries
hereof) and their
permitted successors and assigns. This Agreement is enforceable by
the
Underwriters, the Initial Purchasers and the other third party
beneficiaries
hereto in all respects to the same extent as if they had been
signatories
hereof.
SECTION 17. Amendments. No term or provision of this
Agreement may be
waived or modified unless such waiver or modification is in writing
and signed
by a duly authorized officer of the party hereto against whom such
waiver or
modification is sought to be enforced. The Seller's obligations
hereunder shall
in no way be expanded, changed or otherwise affected by any
amendment of or
modification to the Pooling and Servicing Agreement,
16
including, without limitation, any defined terms therein, unless
the Seller has
consented to such amendment or modification in writing.
SECTION 18. Accountants' Letters. The parties hereto shall
cooperate
with Ernst & Young LLP in making available all information and
taking all steps
reasonably necessary to permit such accountants to deliver the
letters required
by the Underwriting Agreement and the Certificate Purchase
Agreement.
SECTION 19. Knowledge. Whenever a representation or
warranty or other
statement in this Agreement (including, without limitation,
Schedule I hereto)
is made with respect to a Person's "knowledge," such statement
refers to such
Person's employees or agents who were or are responsible for or
involved with
the indicated matter and have actual knowledge of the matter in
question.
SECTION 20. Cross-Collateralized Mortgage Loans. Each
Crossed Loan
Group is identified on the Mortgage Loan Schedule. For purposes of
reference,
the Mortgaged Property that relates or corresponds to any of the
Mortgage Loans
in a Crossed Loan Group shall be the property identified in the
Mortgage Loan
Schedule as corresponding thereto. The provisions of this
Agreement, including,
without limitation, each of the representations and warranties set
forth in
Schedule I hereto and each of the capitalized terms used herein but
defined in
the Pooling and Servicing Agreement, shall be interpreted in a
manner consistent
with this Section 20. In addition, if there exists with respect to
any Crossed
Loan Group only one original of any document referred to in the
definition of
"Mortgage File" in this Agreement and covering all the Mortgage
Loans in such
Crossed Loan Group, the inclusion of the original of such document
in the
Mortgage File for any of the Mortgage Loans in such Crossed Loan
Group shall be
deemed an inclusion of such original in the Mortgage File for each
such Mortgage
Loan.
17
IN WITNESS WHEREOF, the Seller and the Purchaser have
caused their
names to be signed hereto by their respective duly authorized
officers as of the
date first above written.
SELLER
MERRILL LYNCH MORTGAGE LENDING, INC.
By: /s/ David M. Rodgers
----------------------------------------
Name: David M. Rodgers
Title: Vice President
Address for Notices:
Merrill Lynch Mortgage Lending, Inc.
Four World Financial Center
250 Vesey Street
New York, New York 10080
Telecopier No.: (212) 449-3658
Telephone No.: (212) 449-3611
Attention: David M. Rodgers
with a copy to:
Robert M. Denicola, Esq.
Merrill Lynch Mortgage Investors,
Inc.
Four World Financial Center
250 Vesey Street
New York, New York 10080
Telecopier No.: (212) 449-0265
Telephone No.: (212) 449-2916
PURCHASER
MERRILL LYNCH MORTGAGE INVESTORS,
INC.
By: /s/ David M. Rodgers
----------------------------------------
Name: David M Rodgers
Title: Executive Vice President,
Chief Officer
in Charge of Commercial
Mortgage
Securitization
Address for Notices:
Merrill Lynch Mortgage Investors,
Inc.
Four World Financial Center
250 Vesey Street
New York, New York 10080
Telecopier No.: (212) 449-3658
Telephone No.: (212) 449-3611
Attention: David M. Rodgers
with a copy to:
Robert M. Denicola, Esq.
Merrill Lynch Mortgage Investors,
Inc.
Four World Financial Center
250 Vesey Street
New York, New York 10080
Telecopier No.: (212) 449-0265
Telephone No.: (212) 449-2916
MLML MORTGAGE LOAN PURCHASE AGREEMENT
SCHEDULE I
MORTGAGE LOAN REPRESENTATIONS AND WARRANTIES
For purposes of this Schedule I, the "Value" of a
Mortgaged Property
shall mean the value of such Mortgaged Property as determined by
the appraisal
(and subject to the assumptions set forth in the appraisal)
performed in
connection with the origination of the related Mortgage Loan.
1. Mortgage Loan Schedule. The information set forth in
the Mortgage
Loan Schedule with respect to the Mortgage Loans is true and
correct in all
material respects (and contains all the items listed in the
definition of
"Mortgage Loan Schedule") as of the dates of the information set
forth therein
or, if not set forth therein, and in all events no earlier than, as
of the
respective Cut-off Dates for the Mortgage Loans.
2. Ownership of Mortgage Loans. Immediately prior to the
transfer of
the Mortgage Loans to the Purchaser, the Seller had good title to,
and was the
sole owner of, each Mortgage Loan. The Seller has full right, power
and
authority to transfer and assign each Mortgage Loan to or at the
direction of
the Purchaser free and clear of any and all pledges, liens,
charges, security
interests, participation interests and/or other interests and
encumbrances
(except for certain servicing rights as provided in the Pooling and
Servicing
Agreement, any permitted subservicing agreements and servicing
rights purchase
agreements pertaining thereto). The Seller has validly and
effectively conveyed
to the Purchaser all legal and beneficial interest in and to each
Mortgage Loan
free and clear of any pledge, lien, charge, security interest or
other
encumbrance (except for certain servicing rights as provided in the
Pooling and
Servicing Agreement, any permitted subservicing agreements and
servicing rights
purchase agreements pertaining thereto); provided that recording
and/or filing
of various transfer documents are to be completed after the Closing
Date as
contemplated hereby and by the Pooling and Servicing Agreement. The
sale of the
Mortgage Loans to the Purchaser or its designee does not require
the Seller to
obtain any governmental or regulatory approval or consent that has
not been
obtained. Each Mortgage Note is, or shall be as of the Closing
Date, properly
endorsed to the Purchaser or its designee and each such endorsement
is, or shall
be as of the Closing Date, genuine.
3. Payment Record. No scheduled payment of principal and
interest under
any Mortgage Loan was 30 days or more past due as of the Due Date
for such
Mortgage Loan in March 2005 without giving effect to any applicable
grace
period, nor was any such payment 30 days or more delinquent in the
twelve-month
period immediately preceding the Due Date for such Mortgage Loan in
March 2005,
without giving effect to any applicable grace period.
4. Lien; Valid Assignment. Each Mortgage related to and
delivered in
connection with each Mortgage Loan constitutes a valid and, subject
to the
limitations and exceptions set forth in representation 13 below,
enforceable
first priority lien upon the related Mortgaged Property, prior to
all other
liens and encumbrances, and there are no liens and/or encumbrances
that are pari
passu with the lien of such Mortgage, in any event subject,
however, to the
following (collectively, the "Permitted Encumbrances"): (a) the
lien for current
real estate taxes, ground rents, water charges, sewer rents and
assessments not
yet delinquent or accruing
interest or penalties; (b) covenants, conditions and restrictions,
rights of
way, easements and other matters that are of public record and/or
are referred
to in the related lender's title insurance policy (or, if not yet
issued,
referred to in a pro forma title policy or a "marked-up" commitment
binding upon
the title insurer); (c) exceptions and exclusions specifically
referred to in
such lender's title insurance policy (or, if not yet issued,
referred to in a
pro forma title policy or "marked-up" commitment binding upon the
title
insurer); (d) other matters to which like properties are commonly
subject; (e)
the rights of tenants (as tenants only) under leases (including
subleases)
pertaining to the related Mortgaged Property; (f) if such Mortgage
Loan
constitutes a Cross-Collateralized Mortgage Loan, the lien of the
Mortgage for
another Mortgage Loan contained in the same Crossed Group; and (g)
if the
related Mortgaged Property consists of one or more units in a
condominium, the
related condominium declaration. The Permitted Encumbrances do not,
individually
or in the aggregate, materially interfere with the security
intended to be
provided by the related Mortgage, the current principal use of the
related
Mortgaged Property, the Value of the Mortgaged Property or the
current ability
of the related Mortgaged Property to generate income sufficient to
service such
Mortgage Loan. The related assignment of such Mortgage executed and
delivered in
favor of the Trustee is in recordable form (but for insertion of
the name and
address of the assignee and any related recording information which
is not yet
available to the Seller) and constitutes a legal, valid, binding
and, subject to
the limitations and exceptions set forth in representation 13
below, enforceable
assignment of such Mortgage from the relevant assignor to the
Trustee.
5. Assignment of Leases and Rents. There exists, as part
of the related
Mortgage File, an Assignment of Leases (either as a separate
instrument or as
part of the Mortgage) that relates to and was delivered in
connection with each
Mortgage Loan and that establishes and creates a valid, subsisting
and, subject
to the limitations and exceptions set forth in representation 13
below,
enforceable first priority lien on and security interest in,
subject to
applicable law, the property, rights and interests of the related
Mortgagor
described therein, except for Permitted Encumbrances and except
that a license
may have been granted to the related Mortgagor to exercise certain
rights and
perform certain obligations of the lessor under the relevant lease
or leases,
including, without limitation, the right to operate the related
leased property
so long as no event of default has occurred under such Mortgage
Loan; and each
assignor thereunder has the full right to assign the same. The
related
assignment of any Assignment of Leases not included in a Mortgage,
executed and
delivered in favor of the Trustee is in recordable form (but for
insertion of
the name of the assignee and any related recording information
which is not yet
available to the Seller), and constitutes a legal, valid, binding
and, subject
to the limitations and exceptions set forth in representation 13
below,
enforceable assignment of such Assignment of Leases from the
relevant assignor
to the Trustee. The related Mortgage or related Assignment of
Leases, subject to
applicable law, provides for the appointment of a receiver for the
collection of
rents or for the related mortgagee to enter into possession to
collect the rents
or provides for rents to be paid directly to the related mortgagee,
if there is
an event of default. No person other than the related Mortgagor
owns any
interest in any payments due under the related leases on which the
Mortgagor is
the landlord, covered by the related Assignment of Leases.
6. Mortgage Status; Waivers and Modifications. In the case
of each
Mortgage Loan, except by a written instrument which has been
delivered to the
Purchaser or its designee as a part of the related Mortgage File,
(a) the
related Mortgage (including any
I-2
amendments or supplements thereto included in the related Mortgage
File) has not
been impaired, waived, modified, altered, satisfied, canceled,
subordinated or
rescinded, (b) neither the related Mortgaged Property nor any
material portion
thereof has been released from the lien of such Mortgage and (c)
the related
Mortgagor has not been released from its obligations under such
Mortgage, in
whole or in material part. With respect to each Mortgage Loan,
since the later
of (a) March 4, 2005 and (b) the closing date of such Mortgage
Loan, the Seller
has not executed any written instrument that (i) impaired,
satisfied, canceled,
subordinated or rescinded such Mortgage Loan, (ii) waived, modified
or altered
any material term of such Mortgage Loan, (iii) released the
Mortgaged Property
or any material portion thereof from the lien of the related
Mortgage, or (iv)
released the related Mortgagor from its obligations under such
Mortgage Loan in
whole or material part. For avoidance of doubt, the preceding
sentence does not
relate to any release of escrows by the Seller or a servicer on its
behalf.
7. Condition of Property; Condemnation. In the case of
each Mortgage
Loan, except as set forth in an engineering report prepared by an
independent
engineering consultant in connection with the origination of such
Mortgage Loan,
the related Mortgaged Property is, to the Seller's knowledge, in
good repair and
free and clear of any damage that would materially and adversely
affect its
value as security for such Mortgage Loan (except in any such case
where an
escrow of funds, letter of credit or insurance coverage exists
sufficient to
effect the necessary repairs and maintenance). As of the date of
origination of
the Mortgage Loan, there was no proceeding pending for the
condemnation of all
or any material part of the related Mortgaged Property. As of the
Closing Date,
the Seller has not received notice and has no knowledge of any
proceeding
pending for the condemnation of all or any material portion of the
Mortgaged
Property securing any Mortgage Loan. As of the date of origination
of each
Mortgage Loan and, to the Seller's knowledge, as of the date
hereof, (a) none of
the material improvements on the related Mortgaged Property
encroach upon the
boundaries and, to the extent in effect at the time of
construction, do not
encroach upon the building restriction lines of such property, and
none of the
material improvements on the related Mortgaged Property encroached
over any
easements, except, in each case, for encroachments that are insured
against by
the lender's title insurance policy referred to in representation 8
below or
that do not materially and adversely affect the Value or current
use of such
Mortgaged Property and (b) no improvements on adjoining properties
encroached
upon such Mortgaged Property so as to materially and adversely
affect the Value
of such Mortgaged Property, except those encroachments that are
insured against
by the lender's title insurance policy referred to in
representation 8 below.
8. Title Insurance. Each Mortgaged Property securing a
Mortgage Loan is
covered by an American Land Title Association (or an equivalent
form of)
lender's title insurance policy (the "Title Policy") (or, if such
policy has yet
to be issued, by a pro forma policy or a "marked up" commitment
binding on the
title insurer) in the original principal amount of such Mortgage
Loan after all
advances of principal, insuring that the related Mortgage is a
valid first
priority lien on such Mortgaged Property, subject only to the
Permitted
Encumbrances, except that in the case of a Mortgage Loan as to
which the related
Mortgaged Property is made up of more than one parcel of property,
each of which
is secured by a separate Mortgage, such Mortgage (and therefore the
related
Title Policy) may be in an amount less than the original principal
amount of the
Mortgage Loan, but is not less than the allocated amount of subject
parcel
constituting a portion of the related Mortgaged Property. Such
Title Policy (or,
if
I-3
it has yet to be issued, the coverage to be provided thereby) is in
full force
and effect, all premiums thereon have been paid, no material claims
have been
made thereunder and no claims have been paid thereunder. No holder
of the
related Mortgage has done, by act or omission, anything that would
materially
impair the coverage under such Title Policy. Immediately following
the transfer
and assignment of the related Mortgage Loan to the Trustee, such
Title Policy
(or, if it has yet to be issued, the coverage to be provided
thereby) inures to
the benefit of the Trustee as sole insured without the consent of
or notice to
the insurer. Such Title Policy contains no exclusion for whether,
or it
affirmatively insures (unless the related Mortgaged Property is
located in a
jurisdiction where such affirmative insurance is not available)
that, (a) the
related Mortgaged Property has access to a public road, and (b) the
area shown
on the survey, if any, reviewed or prepared in connection with the
origination
of the related Mortgage Loan is the same as the property legally
described in
the related Mortgage.
9. No Holdback. The proceeds of each Mortgage Loan have
been fully
disbursed (except in those cases where the full amount of the
Mortgage Loan has
been disbursed but a portion thereof is being held in escrow or
reserve accounts
documented as part of the Mortgage Loan documents and the rights to
which are
transferred to the Trustee, pending the satisfaction of certain
condi
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