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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
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