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EXHIBIT 99.1
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MERRILL LYNCH MORTGAGE LENDING, INC.,
SELLER
and
MERRILL LYNCH MORTGAGE INVESTORS, INC.,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of December 1, 2004
Specialty Underwriting and Residential Finance Trust
(Mortgage Loan Asset-Backed Certificates, Series 2004-BC4)
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TABLE OF CONTENTS
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Page
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ARTICLE I CONVEYANCE OF MORTGAGE
LOANS.................................................
1
Section
1.01. Sale of
Mortgage Loans...........................................
1
Section
1.02. Delivery
of Documents............................................
1
Section
1.03. Review of
Documentation..........................................
2
Section 1.04.
Representations
and Warranties Regarding the Seller..............
2
Section
1.05. Grant
Clause.....................................................
9
Section
1.06. Assignment
by Depositor..........................................
9
ARTICLE II MISCELLANEOUS
PROVISIONS....................................................
9
Section
2.01. Binding
Nature of Agreement; Assignment..........................
9
Section
2.02. Entire
Agreement.................................................
9
Section
2.03.
Amendment........................................................
9
Section
2.04. Governing
Law....................................................
10
Section
2.05.
Severability of Provisions.......................................
10
Section
2.06.
Indulgences; No Waivers..........................................
10
Section
2.07. Headings
Not to Affect Interpretation............................
10
Section
2.08. Benefits
of Agreement............................................
10
Section
2.09.
Counterparts.....................................................
10
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SCHEDULE
SCHEDULE A Mortgage Loan Schedule
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This
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of December
1,
2004 (the "Agreement"), is executed by and
between Merrill Lynch Mortgage
Lending, Inc. (the "Seller") and Merrill
Lynch Mortgage Investors, Inc. (the
"Depositor").
All
capitalized terms not defined herein shall have the same
meanings
assigned to such terms in that certain
Pooling and Servicing Agreement (the
"Pooling Agreement"), dated as of December
1, 2004, among the Depositor,
JPMorgan Chase Bank, N.A., as trustee (the
"Trustee") and Litton Loan Servicing,
LP, as servicer (the "Servicer").
W I T N E S S E T H:
WHEREAS,
the Seller has acquired or originated certain mortgage loans
identified on the Mortgage Loan Schedule
attached hereto as Schedule A (the
"Mortgage Loans");
WHEREAS,
the Seller desires to sell, without recourse, all of its
rights,
title and interest in the Mortgage Loans to
the Depositor; and
WHEREAS,
the Seller and the Depositor acknowledge and agree that the
Depositor will assign all of its rights and
delegate all of its obligations
hereunder to the Trustee, and that each
reference herein to the Depositor is
intended, unless otherwise specified, to
mean the Depositor or the Trustee, as
assignee, whichever is the owner of the
Mortgage Loans from time to time.
NOW,
THEREFORE, in consideration of the mutual agreements herein set
forth, and for other good and valuable
consideration, the receipt and adequacy
of which are hereby acknowledged, the
Seller and the Depositor agree as follows:
ARTICLE I
CONVEYANCE OF MORTGAGE LOANS
Section
1.01. Sale of Mortgage Loans. Concurrently with the execution
and
delivery of this Agreement, the Seller does
hereby transfer, assign, set over,
deposit with and otherwise convey to the
Depositor, without recourse, subject to
Sections 1.03 and 1.04, all the right,
title and interest of the Seller in and
to the Mortgage Loans identified on
Schedule A hereto, having an aggregate
principal balance as of the Cut-off Date of
approximately $750,001,382. Such
conveyance includes, without limitation,
the right to all distributions of
principal and interest received on or with
respect to the Mortgage Loans on or
after December 1, 2004 other than payments
of principal and interest due on or
before such date, and all such payments due
after such date but received prior
to such date and intended by the related
Mortgagors to be applied after such
date, together with all of the Seller's
right, title and interest in and to each
related account and all amounts from time
to time credited to and the proceeds
of such account, any REO Property and the
proceeds thereof, the Seller's rights
under any Insurance Policies related to the
Mortgage Loans, and the Seller's
security interest in any collateral pledged
to secure the Mortgage Loans,
including the Mortgaged Properties.
Concurrently with the execution hereof, the Depositor tenders the
purchase
price for the Mortgage Loans.
Section
1.02. Delivery of Documents. In connection with such transfer
and
assignment of the Mortgage Loans hereunder,
the Seller does hereby deliver, or
cause to be delivered, to the Depositor
(or
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its designee) the following documents or
instruments with respect to each
Mortgage Loan (each a "Mortgage File") so
transferred and assigned; provided
that for Mortgage Loans (if any) that have
been prepaid in full after the
Cut-off Date and prior to the Closing Date,
the Seller, in lieu of delivering
the related Mortgage Files, herewith
delivers to the Depositor an Officer's
Certificate which shall include a statement
to the effect that all amounts
received in connection with such prepayment
that are required to be deposited in
the account maintained by the Servicer for
such purpose have been so deposited.
(a)
The Original
Mortgage Note endorsed, "Pay to the order of JPMorgan
Chase Bank, N.A., as trustee - SURF
2004-BC4, without recourse" together with
all riders thereto. The Mortgage Note shall
include all intervening endorsements
showing a complete chain of the title from
the originator to the Seller.
(b)
Except as
provided below and for each Mortgage Loan that is not a
MERS Loan, the original recorded Mortgage
together with all riders thereto, with
evidence of recording thereon, or, if the
original Mortgage has not yet been
returned from the recording office, a copy
of the original Mortgage together
with all riders thereto certified by the
Seller to be true copy of the original
of the Mortgage that has been delivered for
recording in the appropriate
recording office of the jurisdiction in
which the Mortgaged Property is located
and in the case of each MERS Loan, the
original Mortgage together with all
riders thereto, noting the presence of the
MIN of the Loan and either language
indicating that the Mortgage Loan is a MOM
Loan or if the Mortgage Loan was not
a MOM Loan at origination, the original
Mortgage and the assignment thereof to
MERS, with evidence of recording indicated
thereon, or a copy of the Mortgage
certified by the public recording office in
which such Mortgage has been
recorded.
(c)
In the case of
each Mortgage Loan that is not a MERS Loan, the
original Assignment of each Mortgage, to
"JPMorgan Chase Bank, N.A., as trustee
- SURF 2004-BC4."
(d)
The original
policy of title insurance (or a preliminary title
report, commitment or binder if the
original title insurance policy has not been
received from the title insurance
company).
(e)
Originals of any
intervening assignments of the Mortgage, with
evidence of recording thereon or, if the
original intervening assignment has not
yet been returned from the recording
office, a copy of such assignment certified
to be a true copy of the original of the
assignment which has been sent for
recording in the appropriate jurisdiction
in which the Mortgaged Property is
located.
(f)
Originals of all
assumption and modification agreements, if any.
Section
1.03. Review of Documentation. The Depositor, by execution and
delivery hereof, acknowledges receipt of
the Mortgage Files pertaining to the
Mortgage Loans listed on the Mortgage Loan
Schedule, subject to review thereof
by the trustee, JPMorgan Chase Bank, N.A.
(the "Trustee") for the Mortgage Loans
for the Depositor. The Trustee is required
to review, within 60 days following
the Closing Date, each applicable Mortgage
File. If in the course of such review
the Trustee finds any document or documents
constituting a part of a Mortgage
File to be missing or defective (that is,
mutilated, damaged, defaced or
unexecuted) in any material respect, the
Seller shall be obligated to cure such
defect or to repurchase the related
Mortgage Loan from the Depositor (or, at the
direction of and on behalf of the
Depositor, from the Trust Fund), or to
substitute a Replacement Mortgage Loan
therefor, in each case to the same extent
and in the same manner as the Depositor is
obligated to the Trustee and the
Trust Fund under the Pooling Agreement.
Section
1.04. Representations and Warranties Regarding the Seller.
(a)
The Seller
hereby represents and warrants to the Depositor that as
of the date hereof that:
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(i) The Seller
is a Delaware corporation duly organized, validly
existing
and in good standing under the laws governing its creation and
existence
and has full corporate power and authority to own its property,
to carry
on its business as presently conducted, and to enter into and
perform
its obligations under this Agreement;
(ii) The execution and
delivery by the Seller of this Agreement
have been
duly authorized by all necessary corporate action on the part
of
the
Seller; neither the execution and delivery of this Agreement, nor
the
consummation of the transactions herein contemplated, nor
compliance with
the
provisions hereof, will conflict with or result in a breach of,
or
constitute a default under, any of
the provisions of any law, governmental
rule,
regulation, judgment, decree or order binding on the Seller or
its
properties
or the federal stock charter or bylaws of the Seller;
(iii) The execution, delivery and performance by the Seller of
this
Agreement
and the consummation of the transactions contemplated hereby do
not
require the consent or approval of, the giving of notice to,
the
registration with, or the taking of any other action in respect of,
any
state,
federal or other governmental authority or agency, except such
as
has been
obtained, given, effected or taken prior to the date hereof;
(iv) This Agreement
has been duly executed and delivered by the
Seller
and, assuming due authorization, execution and delivery by the
Depositor,
constitutes a valid and binding obligation of the Seller
enforceable against it in accordance with its terms except as
such
enforceability may be subject to (A) applicable bankruptcy and
insolvency
laws and
other similar laws affecting the enforcement of the rights of
creditors
generally and (B) general principles of equity regardless of
whether
such enforcement is considered in a proceeding in equity or at
law;
and
(v) There are no
actions, suits or proceedings pending or, to the
knowledge
of the Seller, threatened or likely to be asserted against or
affecting
the Seller, before or by any court, administrative agency,
arbitrator
or governmental body (A) with respect to any of the
transactions contemplated by this Agreement or (B) with respect to
any
other
matter which in the judgment of the Seller will be determined
adversely
to the Seller and will if determined adversely to the Seller
materially
and adversely affect it or its business, assets, operations or
condition,
financial or otherwise, or adversely affect its ability to
perform
its obligations under this Agreement.
(b)
The Seller
hereby represents and warrants to the Depositor the
following with respect to the Mortgage
Loans as of the Closing Date. To the
extent that any fact, condition or event
with respect to a Mortgage Loan
constitutes a breach of a representation or
warranty of Seller under this
Agreement, the only right or remedy of the
Depositor shall be the right to
enforce the obligations of the Seller under
any applicable representation or
warranty made by it.
(i) The
information set forth with respect to the Mortgage Loans
on the
Mortgage Loan Schedule provides a true, complete, and accurate
and
there are
no material omissions of material facts.
(ii) Each Mortgage is
a valid and enforceable lien on the Mortgaged
Property,
subject only to (a) in the case of the second lien Mortgage
Loans, the
related first lien,(b) the lien of non-delinquent real property
taxes and
assessments not yet due and payable, (c) covenants, conditions
and restrictions, rights of
way, easements and other matters of public
record as
of the date of recording of such Mortgage, such exceptions
appearing
of record being acceptable to mortgage lending institutions
generally,
specifically referred to in the lender's title insurance policy
referred
to in x below or referred to or otherwise considered in the
appraisal
made in
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connection
with the origination of the related Mortgage Loan, and (d)
other
matters to which like properties are commonly subject that do
not
materially
interfere with the benefits of the security intended to be
provided
by such Mortgage.
(iii) Immediately
prior to the assignment of the Mortgage Loans to
the
Depositor, the Seller was the sole legal and beneficial owner of
each
Mortgage
Loan and had full right to transfer and sell the Mortgage Loan
free and
clear of any encumbrance, equity. lien, pledge, charge, claim
or
security
interest.
(iv) There is no
delinquent tax or assessment lien against any
Mortgaged
Property.
(v) There
is no valid set-offs or defense to any Mortgage Note or
Mortgage.
(vi) There are
no mechanic's or similar liens or claims that have
been filed
for work, labor or material and there are not outstanding
rights
that under law, could give rise to such lien, which would
affect
the
Mortgaged Property as a lien senior to or equal to the lien of
the
Mortgage Loan.
(vii) Each Mortgaged
Property is, (i ) undamaged by any toxic
materials
or other environmental hazards on, in or potentially affecting
such
Mortgage Property; and (ii) free and clear of damage and waste
and
there is no proceeding pending for
the total or partial condemnation.
(viii) Each Mortgage Loan is in compliance with local, state or
federal
law or regulation designated to protect the health and safety
of
the
occupants of the Mortgaged Property.
(ix) As of the
Closing Date, the Mortgage Loan has not been
modified
in any material respect including as to prepayment penalties
(except
that a Mortgage Loan may have been modified by a written
instrument
that has been recorded or submitted for recordation, if
necessary,
to protect the interests of the Certificate Holders).
(x) With
respect to each first lien Mortgage Loan that is covered
by a
lender's policy of title insurance, each such policy is
enforceable,
and each
such policy was issued by a title insurer qualified to do
business
in the jurisdiction where the related Mortgaged Property is
located
and acceptable to Fannie Mae or Freddie Mac and is in a form
acceptable
to Fannie Mae or Freddie Mac, which policy insures the Seller
and
successor owners of indebtedness secured by the related insured
Mortgage,
as to the first priority lien of the related Mortgage; to the
best of
the Seller's knowledge, no claims have been made under such
mortgage
title insurance policy and no prior holder of the related
Mortgage,
including the Seller, has done, by act or omission, anything
that would
impair the coverage of such mortgage title insurance policy.
(xi) With
respect to each secon
