EXECUTION VERSION
MORTGAGE LOAN PURCHASE AGREEMENT
This Mortgage Loan Purchase Agreement, dated as of March
21, 2005 (this
"Agreement"), is entered into between KeyBank 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 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
23
$190,966,323 (the "KeyBank 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 KeyBank 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)
100.3170% of the
KeyBank Mortgage Loan Balance as of the Cut-off Date, plus (ii)
$812,566, which
amount represents the amount of interest accrued on the KeyBank
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
$21,925.35) 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, 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").
2
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 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
3
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 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
4
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:
(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
5
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 articles of association 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 articles of association, 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.
6
(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 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
7
(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 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
8
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
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.
9
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)
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,
10
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 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
11
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 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, Merrill Lynch Mortgage Lending, Inc., Bank of America,
N.A., 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;
12
(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 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,
13
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 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 articles of association
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 (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
14
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 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
|
