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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 September 1, 2006
Merrill Lynch Mortgage Investors Trust
(Mortgage Loan Asset-Backed Certificates, Series 2006-HE5)
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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..................................
2
Section 1.02.
Delivery of Documents...................................
2
Section 1.03.
Review of Documentation.................................
2
Section 1.04.
Representations and Warranties of the Sponsor...........
3
Section 1.05.
Grant Clause............................................
6
Section 1.06.
Assignment by Depositor.................................
6
ARTICLE II MISCELLANEOUS
PROVISIONS...................................... 6
Section 2.01.
Binding Nature of Agreement; Assignment.................
6
Section 2.02.
Entire Agreement........................................
6
Section 2.03.
Amendment...............................................
7
Section 2.04.
Governing Law...........................................
7
Section 2.05.
Severability of Provisions..............................
8
Section 2.06.
Indulgences; No Waivers.................................
8
Section 2.07.
Headings Not to Affect Interpretation...................
8
Section 2.08.
Benefits of Agreement...................................
8
Section 2.09.
Counterparts............................................
8
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EXHIBITS
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EXHIBIT A TRANSFER
AGREEMENTS............................................ A-1
EXHIBIT B
TRANSFERORS....................................................
B-1
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SCHEDULE
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SCHEDULE A MORTGAGE LOAN
SCHEDULE........................................ S-1
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This
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of September
1,
2006 (the "Agreement"), is executed by and between Merrill Lynch
Mortgage
Lending, Inc. ("MLML" or the "Sponsor") 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 September 1, 2006, among the
Depositor,
LaSalle Bank National Association, as master servicer (the "Master
Servicer")
and securities administrator (the "Securities Administrator"),
Citibank, N.A.,
as trustee (the "Trustee"), Wilshire Credit Corporation, as a
servicer, and
IndyMac Bank, F.S.B., as a servicer (each a "Servicer" and
together, the
"Servicers").
WITNESSETH:
WHEREAS, pursuant to certain master mortgage loan purchase and
interim
servicing agreements listed on Exhibit A hereto (collectively, the
"Transfer
Agreements") between MLML, as purchaser, and each of the
originators listed on
Exhibit B hereto (collectively, the "Transferors"), Sponsor 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, as
applicable, dated as of September 28, 2006, between each related
Transferor and
the Sponsor (each, a "Bring Down Letter");
WHEREAS, the Sponsor 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 Sponsor 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 Sponsor 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 Sponsor 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
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and interest of the Sponsor in and to the Mortgage Loans identified
on Schedule
A hereto, having an aggregate principal balance as of the Cut-off
Date of
$1,376,307,687. 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 September 1, 2006, 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 Sponsor'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 Sponsor's rights under any Insurance Policies related
to the
Mortgage Loans, and the Sponsor'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 Sponsor hereby
assigns to the
Servicers the right to collect from any related 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
Servicers shall
be third-party beneficiaries of this Agreement to the same extent
as if they
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
assignees of the
Sponsor under the applicable Transfer Agreements to enforce such
rights against
the applicable Transferor.
Concurrently with the execution and delivery of this Agreement, the
Sponsor
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
$[_____________]. The Depositor hereby accepts such assignment, and
shall be
entitled to exercise all such rights of the Sponsor 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 Sponsor 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 Sponsor, 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 60 days following the Closing Date,
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each applicable Mortgage File. If in the course of such review the
Trustee
identifies any material defect, the Sponsor 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 Sponsor.
(a)
The Sponsor hereby represents and warrants to the Depositor that as
of
the date hereof that:
(i) The Sponsor 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 Sponsor of this Agreement
have
been
duly authorized by all necessary corporate action on the part of
the
Sponsor; 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 Sponsor
or its
properties or the federal stock charter or bylaws of the
Sponsor;
(iii) The execution, delivery and performance by the Sponsor 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
Sponsor and, assuming due authorization, execution and delivery by
the
Depositor, constitutes a valid and binding obligation of the
Sponsor
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 Sponsor, threatened or likely to be asserted
against or
affecting the Sponsor, before or by any court, a
