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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, 2005
Merrill Lynch Mortgage Investors Trust
(Mortgage Loan Asset-Backed Certificates, Series 2005-HE3)
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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.......................................
2
Section 1.03.
Review of Documentation.....................................
2
Section 1.04.
Representations and Warranties of the Seller................
2
Section 1.05.
Grant Clause................................................
5
Section 1.06.
Assignment by Depositor.....................................
5
ARTICLE II
MISCELLANEOUS
PROVISIONS.............................................
6
Section 2.01.
Binding Nature of Agreement; Assignment.....................
6
Section 2.02.
Entire Agreement............................................
6
Section 2.03.
Amendment...................................................
6
Section 2.04.
Governing Law...............................................
7
Section 2.05.
Severability of Provisions..................................
7
Section 2.06.
Indulgences; No Waivers.....................................
7
Section 2.07.
Headings Not to Affect Interpretation.......................
7
Section 2.08.
Benefits of Agreement.......................................
7
Section 2.09.
Counterparts................................................
7
EXHIBITS
EXHIBIT A
TRANSFER
AGREEMENTS..................................................
1
EXHIBIT B
TRANSFERORS..........................................................
1
SCHEDULE
SCHEDULE A
MORTGAGE LOAN
SCHEDULE...............................................
1
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This
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of December
1,
2005 (the "Agreement"), is executed by and between Merrill Lynch
Mortgage
Lending, Inc. ("MLML" or 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, 2005, among the
Depositor, Wells
Fargo Bank, N. A., as trustee (the "Trustee") and Wilshire Credit
Corporation,
as servicer ("Servicer").
WITNESSETH:
WHEREAS,
pursuant to certain master mortgage loan purchase and interim
servicing agreements listed on Exhibit A hereto (collectively, the
"Transfer
Agreements") between the Seller and each of the originators listed
on Exhibit B
hereto (collectively, the "Transferors"), Seller has purchased or
received
certain mortgage loans identified on the Mortgage Loan Schedule
attached hereto
as Schedule A (the "Mortgage Loans");
WHEREAS,
each Transfer Agreement is supplemented by a related letter,
each
dated as of December 28, 2005 between each related Transferor and
the Seller
(each, a "Bring Down Letter");
WHEREAS,
the Seller desires to sell, without recourse, all of its
rights,
title and interest in the Mortgage Loans to the Depositor, to
assign all of its
rights and interest under the Transfer Agreements and the Bring
Down Letters,
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 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
$863,594,801. 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, 2005, other than
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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. Notwithstanding anything to the contrary in this
Agreement, the
Seller hereby assigns to the Servicer the right to collect from any
Transferor
the Excess Repurchase Price. The "Excess Repurchase Price" with
respect to any
Mortgage Loan shall be an amount equal to the excess of (a) the
applicable
Repurchase Price owed by a Transferor under the applicable Transfer
Agreement in
the event of a breach of a representation, warranty or covenant
(including those
regarding early payment defaults and premium recapture for early
payments) over
(b) the applicable Purchase Price owed to the Trust, if any, as
defined in the
Pooling Agreement. Notwithstanding anything to the contrary in this
Agreement,
the Servicer shall be a third-party beneficiary of this Agreement
to the same
extent as if it were a party hereto with respect to the limited
assignment of
rights described in this Section 1.01 and shall have full power and
authority as
an assignee of the Seller under the applicable Transfer Agreements
to enforce
such rights against the applicable Transferor.
Concurrently with the execution and delivery of this Agreement, the
Seller
hereby assigns to the Depositor all of its rights and interest
under the
Transfer Agreements and the Bring Down Letters, other than any
servicing rights
retained pursuant to the provisions of the Transfer Agreements and
the Bring
Down Letters, to the extent relating to the Mortgage Loans.
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
the Transfer
Agreements and the Bring Down Letters, as if the Depositor had been
a party to
such agreements.
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 Transfer
Agreements.
(a) 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.
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 for the Mortgage Loans for the Depositor. 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 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
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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 that as
of the date hereof that:
(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;
none of the execution and delivery of this Agreement, the
consummation of the transactions herein contemplated or 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
