Exhibit 99.1
MERRILL LYNCH MORTGAGE
INVESTORS, INC.
as Purchaser
and
CREDIT-BASED ASSET SERVICING
AND SECURITIZATION LLC
as Seller
MORTGAGE LOAN PURCHASE
AGREEMENT
Fixed-Rate and
Adjustable-Rate Mortgage Loans
2005-CB6 Trust
C-BASS Mortgage Loan
Asset-Backed Certificates, Series 2005-CB6
Dated as of September 1,
2005
Back to Contents
|
|
Section 2.01
|
Definitions
|
1
|
|
|
|
|
|
ARTICLE II
|
SALE OF MORTGAGE LOANS;
PAYMENT OF PURCHASE PRICE
|
1
|
|
|
Section 2.01
|
Sale of Mortgage
Loans
|
1
|
|
|
Section 2.02
|
Obligations of Seller Upon
Sale
|
2
|
|
|
Section 2.03
|
Payment of Purchase Price for
the Mortgage Loans
|
4
|
|
|
|
|
|
ARTICLE III
|
REPRESENTATIONS AND
WARRANTIES; REMEDIES FOR BREACH
|
5
|
|
|
Section 3.01
|
Seller Representations and
Warranties Relating to the Mortgage Loans
|
5
|
|
|
Section 3.02
|
Seller Representations and
Warranties
|
14
|
|
|
|
|
|
ARTICLE IV
|
SELLER’S
COVENANTS
|
18
|
|
|
Section 4.01
|
Covenants of the
Seller
|
18
|
|
|
|
|
|
ARTICLE V
|
OPTIONAL PURCHASE OF DEFAULTED
MORTGAGE LOANS
|
18
|
|
ARTICLE VI
|
TERMINATION
|
19
|
|
|
Section 6.01
|
Termination
|
19
|
|
|
|
|
|
ARTICLE VII
|
MISCELLANEOUS
PROVISIONS
|
19
|
|
|
Section 7.01
|
Amendment
|
19
|
|
|
Section 7.02
|
Governing Law
|
19
|
|
|
Section 7.04
|
Severability of
Provisions
|
20
|
|
|
Section 7.05
|
Counterparts
|
20
|
|
|
Section 7.06
|
Further Agreements
|
20
|
|
|
Section 7.07
|
Intention of the
Parties
|
20
|
|
|
Section 7.08
|
Successors and Assigns;
Assignment of this Agreement
|
20
|
|
|
|
|
Schedule I
|
Mortgage Loan
Schedule
|
|
Exhibit A
|
Standard And Poor’s
Glossary For File Format For Levels® Version 5.6
Revised
|
|
|
|
|
|
|
i
Back to
Contents
MORTGAGE
LOAN PURCHASE AGREEMENT, dated as of September 1, 2005 (the “
Agreement ”), between CREDIT-BASED ASSET SERVICING AND
SECURITIZATION LLC
(“ C-BASS” or the “ Seller ”)
and MERRILL LYNCH MORTGAGE INVESTORS, INC. (the “
Purchaser ”).
W I T N E S S E T
H :
WHEREAS,
the Seller is the owner of either the notes or other evidence of
indebtedness (the “ Mortgage Notes ”) or other
evidence of ownership so indicated on Schedule I hereto, and the
other documents or instruments constituting the Mortgage File
(collectively, the “ Mortgage Loans ”);
and
WHEREAS,
the Seller, as of the date hereof, owns the mortgages (the “
Mortgages ”) on the properties (the “
Mortgaged Properties ”) securing such Mortgage Loans,
including rights (a) to any property acquired by foreclosure or
deed in lieu of foreclosure or otherwise, and (b) to the proceeds
of any insurance policies covering the Mortgage Loans or the
Mortgaged Properties or the obligors on the Mortgage Loans;
and
WHEREAS,
the parties hereto desire that the Seller sell the Mortgage Loans
to the Purchaser and the Purchaser purchase the Mortgage Loans from
the Seller pursuant to the terms of this Agreement; and
WHEREAS,
pursuant to the terms of a Pooling and Servicing Agreement, dated
as of September 1, 2005 (the “ Pooling and Servicing
Agreement ”), among the Seller, as seller, the Purchaser,
as depositor, Litton Loan Servicing LP (“ Litton
”), as servicer and JPMorgan Chase Bank, N.A., as trustee
(the “ Trustee ”), the Purchaser will convey the
Mortgage Loans to 2005-CB6 Trust, Series 2005-CB6.
NOW,
THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
|
|
|
|
Section
1.01
Definitions . All capitalized terms used but not defined
herein shall have the meanings assigned thereto in the Pooling and
Servicing Agreement.
|
|
|
|
ARTICLE
II
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
|
|
|
|
|
Section
2.01
Sale of Mortgage Loans . The Seller does hereby agree to and
does hereby sell, assign, set over, and otherwise convey to the
Purchaser, without recourse, on the Closing Date, (i) all of its
right, title and interest in and to each Mortgage Loan and the
related Cut-off Date Principal Balance thereof, including any
Related Documents, (ii) all payments on or collections in respect
of the Mortgage Loans due after the Cut-off Date; (iii) all
property which secured such Mortgage Loan and which has been
acquired by foreclosure or deed in lieu of foreclosure; (iv) its
interest in any insurance policies in respect of the Mortgage
Loans; and (v) all proceeds of any of the foregoing.
|
Back to
Contents
|
Section
2.02
Obligations of Seller Upon Sale .
|
|
|
|
|
|
(a) In
connection with any transfer pursuant to Section 2.01 hereof, the
Seller further agrees, at its own expense, on or prior to the
Closing Date, (x) to indicate in its books and records that the
Mortgage Loans have been sold to the Purchaser pursuant to this
Agreement and (y) to deliver to the Purchaser and the Trustee a
computer file containing a true and complete list of all the
Mortgage Loans specifying, among other things, for each Mortgage
Loan, as of the Cut-off Date, its account number and Cut-off Date
Principal Balance. Such file (the “ Mortgage Loan
Schedule ”) which is included as Exhibit D-1 to the
Pooling and Servicing Agreement, shall also be marked as Schedule I
to this Agreement and is hereby incorporated into and made a part
of this Agreement.
|
In
connection with such transfer and assignment, the Seller, on behalf
of the Purchaser, does hereby deliver or cause to be delivered to,
and deposit with the Trustee, or the Custodian shall cause to be
deposited, the following documents or instruments with respect to
each Mortgage Loan (a “ Mortgage File ”) so
transferred and assigned:
|
(i) the
original Mortgage Note and any riders thereto, endorsed either (A)
in blank or (B) in the following form: “Pay to the order of
JPMorgan Chase, N.A., as Trustee under the Pooling and Servicing
Agreement for the 2005-CB6 Trust, without recourse,” or with
respect to any lost Mortgage Note, an original lost note affidavit
stating that the original mortgage note was lost, misplaced or
destroyed, together with a copy of the related Mortgage
Note;
|
|
|
|
(ii) the
original Mortgage including any riders thereto, with evidence of
recording thereon, and the original recorded power of attorney, if
the Mortgage was executed pursuant to a power of attorney, with
evidence of recording thereon or, if such Mortgage or power of
attorney has been submitted for recording but has not been returned
from the applicable public recording office, has been lost or is
not otherwise available, a copy of such Mortgage or power of
attorney, as the case may be, certified to be a true and complete
copy of the original submitted for recording;
|
|
|
|
|
|
|
(iii) an
original Assignment of Mortgage, in form and substance acceptable
for recording. The Mortgage shall be assigned either (A) in blank
or (B) to JPMorgan Chase Bank, N.A., as Trustee under the Pooling
and Servicing Agreement for the 2005-CB6 Trust, without
recourse”;
|
|
|
|
|
|
|
(iv) an
original or a certified copy of any intervening assignment of
Mortgage showing a complete chain of assignments;
|
|
|
|
|
|
|
(v) the
original or a certified copy of the lender’s title insurance
policy;
|
- 2 -
Back to Contents
(vi) the
original or copies of each assumption, modification, written
assurance or substitution agreement, if any; and
(vii) for
each FHA Loan, the original mortgage insurance certificate and for
each VA Loan, the related VA guaranty.
If
any of the documents referred to in Section 2.02(ii), (iii) or (iv)
above has as of the Closing Date been submitted for recording but
either (x) has not been returned from the applicable public
recording office or (y) has been lost or such public recording
office has retained the original of such document, the obligations
of the Seller to deliver such documents shall be deemed to be
satisfied upon (1) delivery to the Trustee or the Custodian no
later than the Closing Date, of a copy of each such document
certified by the Seller in the case of (x) above or the applicable
public recording office in the case of (y) above to be a true and
complete copy of the original that was submitted for recording and
(2) if such copy is certified by the Seller, delivery to the
Trustee or the Custodian, promptly upon receipt thereof of either
the original or a copy of such document certified by the applicable
public recording office to be a true and complete copy of the
original. If the original lender’s title insurance policy was
not delivered pursuant to Section 2.02(v) above, the Seller shall
deliver or cause to be delivered to the Custodian, a written
commitment or interim binder or preliminary report of title issued
by the title insurance or escrow company, with the original to be
delivered to the Custodian, promptly upon receipt thereof. The
Seller shall deliver or cause to be delivered to the Trustee or the
Custodian promptly upon receipt thereof any other documents
constituting a part of a Mortgage File received with respect to any
Mortgage Loan, including, but not limited to, any original
documents evidencing an assumption or modification of any Mortgage
Loan.
Upon
discovery or receipt of notice of any materially defective document
in, or that a document is missing from, a Mortgage File, the Seller
shall have 120 days to cure such defect or 150 days following the
Closing Date, in the case of missing Mortgages or Assignments or
deliver such missing document to the Trustee or the Custodian. If
the Seller does not cure such defect or deliver such missing
document within such time period, the Seller shall either
repurchase or substitute for such Mortgage Loan in accordance with
Section 3.01 hereof.
The
Purchaser hereby acknowledges its acceptance of all right, title
and interest to the Mortgage Loans and other property, now existing
and hereafter created, conveyed to it pursuant to Section
2.01.
The
parties hereto intend that the transaction set forth herein be a
sale by the Seller to the Purchaser of all the Seller’s
right, title and interest in and to the Mortgage Loans and other
property described above. In the event the transaction set forth
herein is deemed not to be a sale, the Seller hereby grants to the
Purchaser a first priority perfected security interest in all of
the Seller’s right, title and interest in, to and under the
Mortgage Loans and other property described above, whether now
existing or hereafter created, to secure all of the Seller’s
obligations hereunder; and this Agreement shall constitute a
security agreement 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 the Pooling and Servicing
Agreement.
- 3 -
Back to Contents
|
(b) The
Seller shall cause the Assignments of Mortgage which were delivered
in blank to be completed and shall cause all Assignments referred
to in Section 2.02(iii) hereof and, to the extent necessary, in
Section 2.02(iv) hereof to be recorded. The Seller shall cause the
Servicer to deliver such Assignments for recording within 30 days
of the Closing Date. The Seller shall cause the Servicer to furnish
the Trustee, or its designated agent, with a copy of each
Assignment of Mortgage submitted for recording. In the event that
any such Assignment is lost or returned unrecorded because of a
defect therein, the Seller shall cause the Servicer to promptly
have a substitute Assignment prepared or have such defect cured, as
the case may be, and thereafter cause each such Assignment to be
duly recorded. In the event that any Mortgage Note is endorsed in
blank as of the Closing Date, promptly following the Closing Date
the Seller shall cause the Servicer to cause to be completed such
endorsements in the following form: “Pay to the order of
JPMorgan Chase Bank, N.A., as Trustee under the Pooling and
Servicing Agreement, for the C-BASS Mortgage Loan Asset-Backed
Certificates, Series 2005-CB6, without recourse.”
|
|
|
|
|
Section
2.03
Payment of Purchase Price for the Mortgage Loans . In
consideration of the sale of the Mortgage Loans from the Seller to
the Purchaser on the Closing Date, the Purchaser agrees to pay to
the Seller on the Closing Date by transfer of immediately available
funds, as directed by the Seller, an amount equal to $[ ] in
respect of the Mortgage Loans (the “ Purchase Price
”), net of an expense reimbursement amount of $[ ] (the
“ Expense Reimbursement Amount ”), and to
transfer to the Seller or its designee on the Closing Date, Class
N, Class X, and Residual Certificates (collectively, the
“Private Certificates”). The Expense Reimbursement
Amount shall reimburse the Purchaser for the Purchaser’s
Securities and Exchange Commission registration statement fees and
the Purchaser’s registration statement administration fees
allocable to the Trust. In addition to the Expense Reimbursement
Amount, the Seller shall pay, and be billed directly for, all
reasonable expenses incurred by the Purchaser in connection with
the issuance of the Certificates, including, without limitation,
printing fees incurred in connection with the prospectus relating
to the Certificates, blue sky registration fees and expenses, fees
and reasonable expenses of Purchaser’s counsel, fees of the
rating agencies requested to rate the Certificates,
accountant’s fees and expenses and the fees and expenses of
the Trustee and the Certificate Insurer and other out-of-pocket
costs, if any. If the Purchaser shall determine that the Expense
Reimbursement Amount is not sufficient to reimburse the Purchaser
for all reasonable expenses incurred by it that are subject to
reimbursement by the Seller hereunder as described above, the
Seller shall promptly reimburse the Purchaser for such additional
amounts upon written notice by the Purchaser to the
Seller.
|
- 4 -
Back to Contents
|
ARTICLE
III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
|
|
|
|
|
Section
3.01
Seller Representations and Warranties Relating to the Mortgage
Loans . The Seller hereby represents and warrants to the
Purchaser, with respect to the Mortgage Loans, that as of the
Closing Date or as of such date specifically provided
herein:
|
|
|
|
(a) The
information set forth in the Mortgage Loan Schedule is complete,
true and correct as of the Cut-off Date.
|
|
|
|
(b) There
are no delinquent taxes, ground rents, water charges, sewer rents,
assessments, including assessments payable in future installments,
or other outstanding charges affecting the related Mortgaged
Property.
|
|
|
|
(c) The
terms of the Mortgage Note and the Mortgage have not been impaired,
waived, altered or modified in any respect, except by written
instruments, recorded in the applicable public recording office if
necessary to maintain the lien priority of the Mortgage and the
interests of the Certificateholders, and which have been delivered
to the Trustee; the substance of any such waiver, alteration or
modification has been approved by the title insurer, to the extent
required by the related policy, and is reflected on the Mortgage
Loan Schedule. No instrument of waiver, alteration or modification
has been executed, and no Mortgagor has been released, in whole or
in part, except, in connection with an assumption agreement
approved by the title insurer, to the extent required by the policy
and, in the case of an FHA Loan, to the extent required by the
related Insurance Agreement, and which assumption agreement has
been delivered to the Trustee and the terms of which are reflected
in the Mortgage Loan Schedule.
|
|
|
|
(d) The
Mortgage Note and the Mortgage are not subject to any right of
rescission, set-off, counterclaim or defense, including the defense
of usury, nor will the operation of any of the terms of the
Mortgage Note and the Mortgage, or the exercise of any right
thereunder, render the Mortgage unenforceable, in whole or in part,
or subject to any right of rescission, set-off, counterclaim or
defense, including the defense of usury and no such right of
rescission, set-off, counterclaim or defense has been asserted with
respect thereto.
|
|
|
|
(e) All
buildings upon the Mortgaged Property are insured by a generally
acceptable insurer against loss by fire, hazards of extended
coverage and such other hazards as are customary in the area where
the Mortgaged Property is located, pursuant to insurance policies
conforming to the requirements of the Pooling and Servicing
Agreement. All such insurance policies contain a standard mortgagee
clause naming the Seller, its successors and assigns as mortgagee
and all premiums thereon have been paid. If upon origination of the
Mortgage Loan, the Mortgaged Property was in an area identified on
a Flood Hazard Map or Flood Insurance Rate Map issued by the
Federal Emergency Management Agency as having special flood hazards
(and such flood insurance has been made available) a flood
insurance policy meeting the requirements of the current guidelines
of the Federal Insurance Administration is in effect which policy
conforms to the requirements of the Federal National Mortgage
Association (“ FNMA” ) and the Federal Home Loan
Mortgage Corporation (“ FHLMC” ). The Mortgage
obligates the Mortgagor thereunder to maintain all such insurance
at the Mortgagor’s cost and expense, and on the
Mortgagor’s failure to do so, authorizes the holder of the
Mortgage to maintain such insurance at the Mortgagor’s cost
and expense and to seek reimbursement therefor from the Mortgagor.
All acts required to be performed to preserve the rights and
remedies of the Trustee in any such insurance policies have been
performed, including, without limitation, any necessary
notifications of insurers and assignments of policies or interests
therein.
|
- 5 -
Back to Contents
|
(f) Any
and all requirements of any federal, state or local law, including,
without limitation, usury, truth-in-lending, predatory or abusive
lending laws, real estate settlement procedures, consumer credit
protection, equal credit opportunity or disclosure laws applicable
to the origination and servicing of the Mortgage Loans have been
complied with.
|
|
|
|
(g) The
Mortgage has not been satisfied, canceled, subordinated (other than
with respect to second lien loans, the subordination to the first
lien loan) rescinded, in whole or in part, and the Mortgaged
Property has not been released from the lien of the Mortgage, in
whole or in part, nor has any instrument been executed that would
effect any such satisfaction, cancellation, subordination,
rescission or release.
|
|
|
|
(h) The
Mortgage is a valid, existing and enforceable first or second lien
on the Mortgaged Property, including all improvements on the
Mortgaged Property subject only to (1) the lien of current real
property taxes and assessments not yet due and payable, (2)
covenants, conditions and restrictions, rights of way, easements
and other matters of the public record as of the date of recording
being acceptable to mortgage lending institutions generally and, in
the case of FHA Loans, to the FHA, and in the case of the VA Loans
to the VA and specifically referred to in the lender’s title
insurance policy delivered to the originator of the Mortgage Loan,
(3) other matters to which like properties are commonly subject
which do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment,
value or marketability of the related Mortgaged Property and which
may not in any way prevent realization of the benefits of the
related Insurance Agreement, if applicable and (4) with respect to
any second lien mortgage loan, the lien of the related first
mortgage loan. Any security agreement, chattel mortgage or
equivalent document related to and delivered in connection with the
Mortgage Loan establishes and creates a valid, existing and
enforceable first or second lien and first or second priority
security interest on the property described therein and the Seller
has full right to sell and assign the same to the
Purchaser.
|
|
|
|
(i) The
Mortgage Note and the related Mortgage are genuine and each is the
legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms. No more than 2.0% of the
Mortgage Loans by Cut-off Date Principal Balance are evidenced by
lost note affidavits due to missing original Mortgage
Notes.
|
- 6 -
Back to Contents
|
(j) The
proceeds of the Mortgage Loan have been fully disbursed to or for
the account of the Mortgagor and there is no obligation for the
mortgagee to advance additional funds thereunder and any and all
requirements as to completion of any on-site or off-site
improvement and as to disbursements of any escrow funds therefor
have been complied with. All costs, fees and expenses incurred in
making or closing the Mortgage Loan and the recording of the
Mortgage have been paid, and the Mortgagor is not entitled to any
refund of any amounts paid or due to the mortgagee pursuant to the
Mortgage Note or Mortgage.
|
|
|
|
(k) Immediately
prior to the transfer and assignment contemplated herein, the
Seller was the sole owner and holder of the Mortgage Loans and has
good and marketable title to each Mortgage Loan, free and clear of
any and all liens, pledges, charges, claims, participation
interests, mortgages, security interests or encumbrances or other
interests of any nature and has full right and authority to sell
and assign the same.
|
|
|
|
(l) Each
Mortgage Loan is covered by an ALTA mortgagee title insurance
policy acceptable to FNMA or FHLMC, issued by a title insurer
acceptable to (1) FNMA and FHLMC, in the case of a conventional
Mortgage Loan and (2) the FHA, in the case of an FHA Loan, and
qualified to do business in the jurisdiction where the Mortgaged
Property is located, insuring (subject to the exceptions contained
in (h)(1) and (2) above) the Seller, its successors and assigns as
to the first or second priority lien of the Mortgage in the
original principal amount of the Mortgage Loan and against any loss
by reason of the invalidity or unenforceability of the lien
resulting from the provisions of the Mortgage providing for
adjustment in the mortgage interest rate and/or monthly payment
including any negative amortization thereunder. Additionally, such
mortgagee title insurance policy affirmatively insures ingress and
egress to and from the Mortgaged Property, and against
encroachments by or upon the Mortgaged Property or any interest
therein. The Seller is the sole insured of such mortgagee title
insurance policy, and such lender’s title insurance policy is
in full force and effect and will be in full force and effect upon
the consummation of the transactions contemplated by this
Agreement. No claims have been made under such mortgagee title
insurance policy, and no prior holder of the related Mortgage,
including the Seller, has done, by act or omission, anything which
would impair the coverage of such mortgagee title insurance
policy.
|
|
|
|
(m) There
are no mechanics’ or similar liens or claims which have been
filed for work, labor or material (and no rights are outstanding
that under law could give rise to such lien) affecting the related
Mortgaged Property which are or may be liens prior to, or equal or
coordinate with, the lien of the related Mortgage.
|
|
|
|
(n) The
collection practices used by the Servicer with respect to each
Mortgage Note and Mortgage have been in all respects legal, proper,
prudent and customary in the mortgage servicing
industry.
|
|
|
|
(o) The
Mortgage and related Mortgage Note contain customary and
enforceable provisions such as to render the rights and remedies of
the holder thereof adequate for the realization against the
Mortgaged Property of the benefits of the security provided
thereby, including, (1) in the case of a Mortgage designated as a
deed of trust, by trustee’s sale, and (2) otherwise by
judicial foreclosure. There is no homestead or other exemption
available to the Mortgagor which would interfere with the right to
sell the Mortgaged Property at a trustee’s sale or the right
to foreclose the Mortgage. The Mortgagor has not notified the
Seller and the Seller has no knowledge of any relief requested or
allowed to the Mortgagor under the Soldiers and Sailors Civil
Relief Act of 1940, as amended.
|
- 7 -
Back to Contents
|
(p) The
Mortgage Note is not and has not been secured by any collateral
except the lien of the corresponding Mortgage on the Mortgaged
Property and the security interest of any applicable security
agreement or chattel mortgage.
|
|
|
|
(q) In
the event the Mortgage constitutes a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has been properly
designated and currently so serves and is named in the Mortgage,
and no fees or expenses are or will become payable by the Purchaser
to the trustee under the deed of trust, except in connection with a
trustee’s sale after default by the Mortgagor.
|
|
|
|
(r) No
Mortgage Loan contains provisions pursuant to which monthly
payments are (1) paid or partially paid with funds deposited in any
separate account established by the Seller, the Mortgagor, or
anyone on behalf of the Mortgagor, (2) paid by any source other
than the Mortgagor or (3) contains any other similar provisions
which may constitute a “buydown” provision. The
Mortgage Loan is not a graduated payment mortgage loan and the
Mortgage Loan does not have a shared appreciation or other
contingent interest feature.
|
|
