Exhibit 99.1
EXECUTION COPY
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TERWIN ADVISORS LLC,
SELLER
and
MERRILL LYNCH MORTGAGE INVESTORS, INC.,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of July 1, 2005
Terwin Mortgage Trust
(Asset-Backed Certificates, Series TMTS 2005-10HE)
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TABLE OF CONTENTS
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....................................2
Section 1.03.
Review of
Documentation..................................2
Section 1.04.
Representations
and Warranties of the Seller.............2
Section 1.05.
Grant
Clause............................................12
Section 1.06.
Assignment by
Depositor.................................12
ARTICLE II MISCELLANEOUS
PROVISIONS........................................12
Section 2.01.
Binding Nature
of Agreement; Assignment.................12
Section 2.02.
Entire
Agreement........................................12
Section 2.03.
Amendment...............................................12
Section 2.04.
Governing
Law...........................................13
Section 2.05.
Severability of
Provisions..............................13
Section 2.06.
Indulgences; No
Waivers.................................13
Section 2.07.
Headings Not to
Affect Interpretation...................14
Section 2.08.
Benefits of
Agreement...................................14
Section 2.09.
Counterparts............................................14
SCHEDULE
SCHEDULE A Mortgage Loan Schedule
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This
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of July 1,
2005
(the "Agreement"), is executed by and
between Terwin Advisors LLC (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 July 1,
2005, among the Depositor, the Seller,
U.S. Bank National Association, as trustee
(the "Trustee"), JPMorgan Chase Bank,
N.A., as servicing administrator, securities administrator and
backup servicer
and Specialized Loan Servicing, LLC, as
servicer (the "Servicer").
W I T N E S S E T H:
WHEREAS,
pursuant to certain
mortgage loan purchase
agreements
and the
bring down letters related to such agreements
(each, a "Transfer
Agreement"),
the Seller has purchased or received from various originators (each, a
"Transferor") 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, other than the servicing
rights, in the Mortgage Loans to
the Depositor, to assign all of its rights and
interest under each Transfer
Agreement, and to delegate all of its
obligations thereunder, 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, other than the
servicing rights, 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 $276,035,204.92.
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 July 1, 2005
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.
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Concurrently with the
execution and delivery
of this Agreement,
the
Seller hereby assigns to the Depositor all
of its rights and interest under each
Transfer Agreement, other than the Seller's right to
indemnification from
the
related Transferor for breaches of
representations
and warranties
under such
Transfer Agreement. Concurrently with the execution hereof, the Depositor
tenders the purchase price of $[INTENTIONALLY OMITTED]. The Depositor hereby
accepts such assignment, and shall be entitled to exercise
all such rights of
the Seller under each Transfer Agreement, as if the Depositor had been a
party
to such agreement.
Notwithstanding the foregoing, if the Depositor pursues any remedy
against
the Seller pursuant to Section 1.04(b) and the Seller fully performs such
remedy, and to the extent such remedy could also be enforced against the
Transferor under the related Transfer
Agreement,
the Depositor shall be
deemed
to have reassigned such rights and
remedies that the Depositor has against such
Transferor back to the Seller but only to the
extent necessary to permit the
Seller to pursue such remedies against the related Transferor pursuant to the
terms of the related Transfer Agreement and only with respect to the
Mortgage
Loan(s) as to which such remedy has been
fully performed by the Seller.
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 its designee) the documents or
instruments with respect to each Mortgage Loan (each a "Mortgage File") so
transferred and assigned, as specified in
the applicable Transfer Agreement.
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 applicable
Servicer for such
purpose have been so
deposited.
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 Custodian, on behalf of the Trustee, for the Mortgage Loans for the
Depositor. The Custodian, on behalf of the Trustee, is required to review,
within 45 days following the Closing Date,
each applicable
Mortgage File. If in
the course of such review the Custodian, on behalf of the Trustee,
identifies
any Material Defect, 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 of the Seller.
(a) The
Seller hereby
represents and
warrants to the Depositor as of the
date hereof that:
(1) The Seller is a Delaware limited liability company duly
organized,
validly existing and
in good standing under the laws governing
its
creation and
existence and has full 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;
(2) The execution and delivery by the Seller of this Agreement have
been duly
authorized by all
necessary 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,
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any of the
provisions of any law, governmental rule, regulation, judgment,
decree or
order binding on the Seller or its properties which conflict or
breach
would have a material
adverse effect on the
ability of the Seller
to perform
hereunder;
(3) 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;
(4) 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
(5) 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
adversely
affect its ability to perform its obligations under this
Agreement.
(b) The
representations and
warranties of each Transferor with respect to
the Mortgage Loans in the applicable Transfer Agreement were made as of the
Closing Date. To the extent that any fact,
condition or event
with respect to a
Mortgage Loan constitutes a breach of both
(i) a representation or warranty of a
Transferor under the applicable
Transfer Agreement and
(ii) a representation or
warranty of the Seller under this
Agreement, the
Depositor shall have the right
to enforce the obligations of the Seller
and to the extent that the Seller fails
to fulfill its contractual obligations hereunder then the Depositor shall
have
the right to enforce the obligations of such Transferor under any applicable
representation or warranty made by it. If a
Transferor fulfills
its obligations
under the provisions of the applicable
Transfer Agreement by substituting
for
the affected Mortgage Loan a mortgage loan
which is not a Replacement Mortgage
Loan, the Seller shall, in exchange for
such substitute
mortgage loan,
provide
the Depositor (a) with the applicable
Purchase Price for the
affected Mortgage
Loan or (b) within the two year period following the Closing Date, with a
Replacement Mortgage Loan for such affected
Mortgage Loan.
Notwithstanding the
foregoing, the Depositor will enforce the representations and warranties
contained in Section 1.04(b) (8), (44), (45) and (47) only against the
Seller
and upon such enforcement any rights and
remedies of the Depositor against the
related Transferor regarding such representations and warranties will be
considered to be reassigned by the
Depositor back to the Seller. Subject to the
foregoing, the Seller represents and
warrants that as of the Closing Date, as to
each Mortgage Loan, that:
(1) The information set forth in the Mortgage Loan Schedule is
complete,
true and correct in all material respects as of the Cut-off
Date;
(2) With respect to a
Mortgage Loan that is
not a Co-op Loan,
the
Mortgage
creates a first lien or a first priority ownership interest in
an
estate in
fee simple in real property securing the related Mortgage
Note.
With
respect to a Mortgage Loan that is a Co-op Loan, the Mortgage
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creates a
first lien or a first priority ownership interest in the stock
ownership
and leasehold rights associated with the cooperative unit
securing
the related Mortgage Note;
(3) All payments
due on or prior to the Cut-off Date for such
Mortgage
Loan have been made as
of the Closing Date and the Mortgage Loan
is not 31
days or more delinquent in payment and has not been dishonored,
except
that, as of the Cut-off Date, no more than approximately 1.50% of
the
Mortgage Loans may be between 31 days and 60 days delinquent (in each
case, by
aggregate Cut-off Date
Principal Balance of
all of the Mortgage
Loans).
The Seller has not
advanced funds,
or induced,
solicited or to
their
actual knowledge,
received any advance
of funds from a party other
than the
owner of the related Mortgaged Property, directly or indirectly,
for the
payment of any amount required by the Mortgage Note or
Mortgage;
(4) All taxes, governmental assessments, insurance premiums, water,
sewer and
municipal charges, leasehold payments or ground rents which
previously
became due and owing
have been paid, or escrow funds have been
established
in an amount
sufficient
to pay for every such
escrowed item
which
remains unpaid and which has been
assessed but is not
yet due and
payable;
(5) The terms of the Mortgage Note and the Mortgage have not been
impaired,
waived, altered or modified in any
respect, except by
written
instruments which have been recorded to the extent any such
recordation is
required
by law, or, necessary
to protect the interest of the Depositor.
No
instrument of waiver,
alteration or modification has been executed. No
Mortgagor
has been released, in
whole or in part, from
the terms thereof
except in
connection
with an assumption
agreement and which
assumption
agreement
is part of the Mortgage File and the terms of which are
reflected
in the Mortgage Loan Schedule;
(6) The Mortgage Note
and the Mortgage are not subject to any right
of
rescission,
set-off, counterclaim or defense, including, without
limitation, the
defense of usury, nor
will the operation
of any of the
terms of
the Mortgage Note or the Mortgage, or the exercise of any right
thereunder, render the
Mortgage Note or 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; and the Mortgagor was not a debtor in any state or
federal
bankruptcy or insolvency proceeding at the time the
Mortgage Loan
was
originated;
(7) All buildings or other customarily insured improvements upon
the
Mortgaged
Property are insured
by an insurer
acceptable under the Fannie
Mae
Guides, against loss
by fire, hazards of
extended coverage and
such
other
hazards as are
provided for in the
Fannie Mae Guides or by Freddie
Mac,
as well as all
additional
requirements
set forth in the Pooling
Agreement.
All such insurance policies contain a standard mortgagee clause
naming
the Seller, its successors and assigns as loss payee and all
premiums
thereon have been
paid. All such standard hazard policies are in
full force
and effect. If required by the Flood Disaster Protection Act of
1973, as
amended, the Mortgage Loan is covered by a flood insurance
policy
meeting
the requirements of the current guidelines of the Federal
Insurance
Administration
which policy conforms
to Fannie Mae and Freddie
Mac
requirements, as well
as all additional requirements set forth in the
Pooling
Agreement.
Such policy was issued
by an insurer acceptable under
Fannie Mae
or Freddie Mac guidelines. The Mortgage obligates the Mortgagor
thereunder
to maintain
all such insurance at the Mortgagor's cost and
expense,
and upon 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;
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(8) Any and all
requirements of any
federal, state or local law
including,
without limitation, usury, truth-in-lending, real estate
settlement
procedures,
consumer
credit
protection,
equal
credit
opportunity,
disclosure and all applicable predatory and abusive lending
laws
applicable
to the Mortgage Loan have been complied with in all
material
respects. To the best of the Seller's knowledge, any and all
statements
or acknowledgments required to be made by the Mortgagor
relating
to such requirements
which were in the
Mortgage File when
such
Mortgage
Loan was acquired by the Seller are and will remain in the
Mortgage
File;
(9) The Mortgage has not been satisfied, canceled or subordinated,
in whole
or in part, or rescinded, 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 release, cancellation,
subordination or rescission;
(10) The related
Mortgage is a valid,
subsisting,
enforceable and
perfected
first lien on the
Mortgaged Property, including for Mortgage
Loans that
are not Co-op Loans,
all buildings on the
Mortgaged Property
and all
installations and mechanical, electrical, plumbing, heating and
air
conditioning
systems affixed to
such buildings,
and all additions,
alterations and
replacements
made at any time with respect to the
foregoing
securing the Mortgage
Note's original
principal balance.
The
Mortgage
and Mortgage Note do not contain any
evidence of any
security
interest
or other interest or right thereto. Such lien is free and clear
of all
adverse claims,
liens and encumbrances having priority over the
lien of
the Mortgage,
subject only to (1) the lien of non-delinquent
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 which are
acceptable
to mortgage lending institutions generally and either (A) which
are
referred to or
otherwise considered
in the appraisal made for the
originator
of the Mortgage Loan, or (B) which do not adversely affect the
appraised
value of the Mortgaged
Property as set forth in such appraisal,
and (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. Any security agreement, chattel
mortgage
or equivalent
document related to and delivered in connection
with the
Mortgage Loan establishes and creates a valid, subsisting,
enforceable and perfected first lien and first priority security
interest,
in each
case, on the property
described therein,
and the Seller has
the
full right
to sell and assign the same to the Depositor;
(11) The Mortgage
Note and the related
Mortgage are original and
genuine
and each is the legal,
valid and binding
obligation of the maker
thereof,
enforceable in all
respects in accordance with its terms subject
to
bankruptcy,
insolvency,
moratorium,
reorganization and other laws of
general
application
affecting the rights of creditors and by general
equitable
principles.
All parties to the
Mortgage Note and the
Mortgage
had the
legal capacity to
enter into the Mortgage Loan and to execute and
deliver
the Mortgage Note and
the Mortgage.
The Mortgage Note and the
Mortgage
have been duly and properly executed by such parties. To the
best
of the
Seller's knowledge,
the Mortgagor is a natural person who is a
party to
the Mortgage Note and the Mortgage is in an individual capacity
or family
trust that is guaranteed by a natural person. No fraud, error,
omission,
misrepresentation, negligence or similar occurrence with
respect
to a
Mortgage Loan has taken place on the part of Seller or the
Mortgagor,
or, on
th
