<PAGE>
EXHIBIT 99.1
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MERRILL LYNCH MORTGAGE CAPITAL INC.,
SELLER
and
MERRILL LYNCH MORTGAGE INVESTORS, INC.,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of December 1, 2004
First Franklin Mortgage Loan Trust
Mortgage Loan Asset-Backed Certificates, Series 2004-FFC
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TABLE OF CONTENTS
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Page
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ARTICLE I
CONVEYANCE OF MORTGAGE
LOANS.....................................................
5
Section 1.01.
Sale of
Mortgage
Loans.......................................................
5
Section 1.02.
Delivery
of
Documents........................................................
6
Section 1.03.
Review of
Documentation......................................................
6
Section 1.04.
Representations and Warranties of the
Seller................................. 6
Section 1.05.
Grant
Clause.................................................................
19
Section 1.06.
Assignment
by Depositor......................................................
19
ARTICLE II
MISCELLANEOUS
PROVISIONS.........................................................
20
Section 2.01.
Binding
Nature of Agreement;
Assignment...................................... 20
Section 2.02.
Entire
Agreement.............................................................
20
Section 2.03.
Amendment....................................................................
20
Section 2.04.
Governing
Law................................................................
20
Section 2.05.
Severability of
Provisions...................................................
21
Section 2.06.
Indulgences; No
Waivers......................................................
21
Section 2.07.
Headings
Not to Affect
Interpretation........................................ 21
Section 2.08.
Benefits
of
Agreement........................................................
21
Section 2.09.
Counterparts.................................................................
21
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SCHEDULES
SCHEDULE A Mortgage Loan Schedule
<PAGE>
This
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of December
1,
2004 (the "Agreement"), is executed by and
between Merrill Lynch Mortgage
Capital 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, Wells
Fargo Bank, N.A., as master servicer (the
"Master Servicer") and securities
administrator (the "Securities
Administrator"), HSBC Bank USA, National
Association, as trustee (the "Trustee") and
Wilshire Credit Corporation, as
servicer (the "Servicer").
W I T N E S S E T H:
WHEREAS, the Seller has
acquired certain mortgage loans identified on the
Mortgage Loan Schedule attached hereto as
Schedule A (the "Mortgage Loans") from
First Franklin Financial Corporation (the
"Originator"), pursuant to the Master
Mortgage Loan Purchase and Interim
Servicing Agreement, between the Seller and
the Originator, dated as of August 1, 2003,
as amended (the "Transfer
Agreement");
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 $397,867,023. 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.
<PAGE>
Concurrently with the execution hereof, the Depositor tenders the
purchase
price of $397,867,023.
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; provided, 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 60 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 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:
(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
<PAGE>
(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. Other than
"Seller," "Depositor" and "Originator,"
capitalized terms used in this Section
1.04(b) shall have the meanings assigned to
such terms in the Transfer
Agreement. 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 an accurate listing of the
Mortgage
Loans, and
the information with respect to each Mortgage Loan on the
Mortgage
Loan Schedule is true and correct in all material respects at
the
date or
dates respecting which such information is given;
(ii) As of the Closing Date, no Mortgage Loan is in
foreclosure;
(iii) As of the
Closing Date, the Seller would not, based on
delinquencies as of such date, institute foreclosure proceeding
with
respect to
any Mortgage Loan before the next scheduled payment date on
such
Mortgage Loan;
(iv) There are no delinquent taxes, ground rents, water
charges,
sewer
rents, assessments, insurance premiums, leasehold payments,
including
assessments payable in future installments or other outstanding
charges
affecting the related Mortgaged Property;
(v) The terms of the Mortgage Note and the Mortgage have not
been
impaired,
waived, altered or modified in any respect, except by written
instruments, recorded in the applicable public recording office
if
necessary
to maintain the lien priority of the Mortgage, and which have
been
delivered to the Custodian; the substance of any such waiver,
alteration
or modification has been approved by the insurer under the
Primary
Insurance Policy, if any, and the title insurer, to the extent
required
by the related policy, and is reflected on the Mortgage Loan
Schedule.
No instrument of waiver, alteration or modification has been
executed,
and no Mortgagor has been released, in whole or in part, except
in
connection with an assumption agreement approved by the insurer
under
the
Primary Insurance Policy, if any, the title insurer, to the
extent
required
by the policy, and which assumption agreement has been
delivered
to the
Custodian and the terms of which are reflected in the Mortgage
Loan
Schedule;
(vi) The Mortgage Note and the Mortgage are not subject to any
right
of
rescission, set-off, counterclaim or defense, including the defense
of
usury, nor will the
operation of any of the terms of the Mortgage Note and
the
Mortgage, or the exercise of any right thereunder, render the
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;
<PAGE>
(vii) All buildings upon the Mortgaged Property are insured by
a
generally
acceptable insurer in accordance with the Originator's
underwriting guidelines against loss by fire, hazards of extended
coverage
and such
other hazards as are customary in the area where the Mortgaged
Property
is located. All such insurance policies contain a standard
mortgagee
clause naming the Originator, its successors and assigns as
mortgagee
and all premiums thereon have been paid. If the Mortgaged
Property
is in an area identified on a "Flood Hazard Map" or "Flood
Insurance
Rate Map" issued by the Federal Emergency Management Agency as
having
special flood hazards (and such flood insurance has been made
available)
a flood insurance policy meeting the requirements of the
current
guidelines of the Federal Insurance Administration is in effect
which
policy conforms to the guidelines of the Originator. The
Mortgage
obligates
the Mortgagor thereunder to maintain all such insurance at the
Mortgagor's cost and expense, and on the Mortgagor's failure to do
so,
authorizes
the holder of the Mortgage to maintain such insurance at
Mortgagor's cost and expense and to seek reimbursement therefor
from the
Mortgagor;
(viii) Any and all requirements of any federal, state or local
law
including,
without limitation, applicable laws governing prepayment
penalties,
usury, truth in lending, real estate settlement procedures,
consumer
credit protection, equal credit opportunity, fair housing,
disclosure
laws and all applicable predatory and abusive lending laws
applicable
to the origination and servicing of mortgage loans of a type
similar to
the Mortgage Loans have been complied with and the consummation
of the
transactions contemplated hereby will not involve the violation
of
any such
laws;
(ix) The Mortgage has not been satisfied, cancelled, subordinated
or
rescinded,
in whole or in part, 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 satisfaction,
cancellation, subordination, rescission or release;
(x) The related Mortgage is properly recorded and is a valid,
existing
and enforceable second lien and second priority security
interest
on the
Mortgaged Property, including all improvements on the Mortgaged
Property
subject only to (a) the lien of current real property taxes and
assessments not yet due and payable, (b) covenants, conditions
and
restrictions, rights of way, easements and other matters of the
public
record as
of the date of recording being acceptable to mortgage lending
institutions generally and specifically referred to in the lender's
title
insurance
policy delivered to the Originator of the Mortgage Loan and
which do
not adversely affect the Appraised Value of the Mortgaged
Property,
(c) 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 and (d) a first
lien on
the
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, existing and enforceable
second
lien and second priority security interest on the property
described
therein and the Seller has full right to sell and assign the
same to
the Depositor. The Mortgaged Property was not, as of the date
of
origination of the Mortgage Loan, subject to a mortgage, deed of
trust,
deed to
secure debt or other security instrument creating a lien
subordinate to the lien of the Mortgage;
(xi) The Mortgage Note and the related Mortgage are genuine and
each
is the
legal, valid and binding obligation of the maker thereof,
enforceable in accordance with its terms;
(xii) All parties to the Mortgage Note and the Mortgage had
legal
capacity
to enter into the Mortgage Loan and to execute and deliver the
Mortgage
Note and the Mortgage, and the Mortgage Note and the Mortgage
have been
duly and properly executed by such parties. The
<PAGE>
Mortgagor
is a natural person, the identity of such natural person was
fully
verified by the Seller and such Mortgagor is not in violation of
any
laws
regarding identity theft;
(xiii) The proceeds of the Mortgage Loan have been fully
disbursed
to or for
the account of the Mortgagor and there is no obligation for the
Mortgagee
to advance additional funds thereunder and any and all
requirements as to completion of any on-site or off-site
improvement and
as to
disbursements of any escrow funds therefor have been complied
with.
All costs,
fees and expenses incurred in making or closing the Mortgage
Loan and
the recording of the Mortgage have been paid, and the Mortgagor
is not
entitled to any refund of any amounts paid or due to the
Mortgagee
pursuant
to the Mortgage Note or Mortgage;
(xiv) The Seller is the sole legal, beneficial and equitable
owner
of the
Mortgage Note and the Mortgage. The Seller has full right and
authority
under all governmental and regulatory bodies having
jurisdiction
over such
Seller, subject to no interest or participation of, or
agreement
with, any
party, to transfer and sell the Mortgage Loan to the Depositor
pursuant
to this Agreement free and clear of any encumbrance or right of
others,
equity, lien, pledge, charge, mortgage, claim, participation
interest
or security interest of any nature (collectively, a "Lien");
and
immediately upon the transfers and assignments herein contemplated,
the
Seller
shall have transferred and sold all of its right, title and
interest in and to each
Mortgage Loan and the Depositor will hold good,
marketable
and indefeasible title to, and be the owner of, each Mortgage
Loan
subject to no Lien;
(xv) All parties which have had any interest in the Mortgage
Loan,
whether as
Originator, mortgagee, assignee, pledgee or otherwise, are (or,
during the
period in which they held and disposed of such interest, were):
(A)
organized under the laws of such state, or (B) qualified to do
business
in such state, or (C) federal savings and loan associations or
national
banks having principal offices in such state, or (D) not doing
business
in such state so as to require qualification or licensing, or
(E)
not
otherwise required to be licensed in such state. All parties
which
have had
any interest in the Mortgage Loan were in compliance with any
and
all
applicable "doing business" and licensing requirements of the laws
of
the state
wherein the Mortgaged Property is located or were not required
to be
licensed in such state;
(xvi) The Mortgage Loan is covered by an ALTA lender's title
insurance
policy (which, in the case of an Adjustable Rate Mortgage Loan
has an
adjustable rate mortgage endorsement in the form of ALTA 6.0 or
6.1)
acceptable to Fannie Mae and Freddie Mac, issued by a title
insurer
acceptable
to Fannie Mae and Freddie Mac and qualified to do business in
the
jurisdiction where the Mortgaged Property is located, insuring
(subject
to the exceptions contained above in clause (x)(a), (b) and
(d))
the
Seller, its successors and assigns as to the first priority lien
of
the
Mortgage in the original principal amount of the Mortgage Loan
and,
with
respect to any Adjustable Rate Mortgage Loan, against any loss
by
reason of
the invalidity or unenforceability of the lien resulting from
the
provisions of the Mortgage providing for adjustment in the
Mortgage
Interest
Rate and Monthly Payment. Additionally, such lender's title
insurance
policy affirmatively insures ingress and egress to and from the
Mortgaged
Property, and against encroachments by or upon the Mortgaged
Property
or any interest therein. The Seller is the sole insured of such
lender's
title insurance policy, and such lender's title insurance
policy
is in full
force and effect and will be in full force and effect upon the
consummation of the transactions contemplated by this Agreement. No
claims
have been
made under such lender's title insurance policy, and no prior
holder of
the related Mortgage, including the Seller, has done, by act or
omission,
anything which would impair the coverage of such lender's title
insurance
policy;
<PAGE>
(xvii) There is no default, breach, violation or event of
acceleration existing under the Mortgage or the Mortgage Note and
no event
which,
with the passage of time or with notice and the expiration of
any
grace or
cure period, would constitute a default, breach, violation or
event of
acceleration, and the Seller has not waived any default,
breach,
violation
or event of acceleration;
(xviii) There are no mechanics' or similar liens or claims
which
have been
filed for work, labor or material (and no rights are
outstanding
that under
law could give rise to such lien) affecting the related
Mortgaged
Property which are or may be liens prior to, or equal or
coordinate
with, the lien of the related Mortgage;
(xix) All improvements which were considered in determining the
Appraised
Value of the related Mortgaged Property lay wholly within the
boundaries
and building restriction lines of the Mortgaged Property, and
no
improvements on adjoining properties encroach upon the
Mortgaged
Property;
(xx) At the time the Mortgage Loan was originated, the
Originator
was a (i)
mortgagee approved by the Secretary of Housing and Urban
Development pursuant to Sections 203 and 211 of the National
Housing Act
or a
savings and loan association, a savings bank, a commercial bank
or
similar
banking institution which is supervised and examined by a
Federal
or State
authority, or (ii) a mortgage banker or broker licensed or
authorized
to do business in the jurisdiction in which the related
Mortgaged
Property is located, applying the same standards and procedures
used by
the Seller in originating Mortgage Loans directly. The Seller
determined
that the Mortgage Loans were originated in compliance with such
standards
prior to purchasing the Mortgage Loans;
(xxi) Principal payments on the Mortgage Loan shall commence
(with
respect to
any newly originated Mortgage Loans) or commenced no more than
sixty (60)
days after the proceeds of the Mortgage Loan were disbursed.
The
Mortgage Loan bears interest at the Mortgage Interest Rate.
With
respect to
each Mortgage Loan, the Mortgage Note is payable on the first
day of
each month in Monthly Payments, which, (A) in the case of a
Fixed
Rate
Mortgage Loan, are sufficient to fully amortize the original
principal
balance over the original term thereof and to pay interest at
the
related Mortgage Interest Rate, (B) in the case of an Adjustable
Rate
Mortgage
Loan, are changed on each Adjustment Date, and in any case, are
sufficient
to fully amortize the original principal balance over the
original
term thereof and to pay interest at the related Mortgage
Interest
Rate and
(C) in the case of a Balloon Loan, are based on a twenty (20)
or
thirty
(30) year amortization schedule, as set forth in the related
Mortgage
Note, and a final Monthly Payment substantially greater than
the
preceding
Monthly Payment which is sufficient to amortize the remaining
principal
balance of the Balloon Loan and to pay interest at the related
Mortgage
Interest Rate. The Index for each Adjustable Rate Mortgage Loan
is as
defined in the Mortgage Loan Schedule. The Mortgage Note does
not
permit
negative amortization. No Mortgage Loan is a Convertible
Mortgage
Loan;
(xxii) The origination and collection practices used by the
Originator
with respect to each Mortgage Note and Mortgage have been in
all
respects legal, proper, prudent and customary in the mortgage
origination and servicing industry. The Mortgage Loan has been
serviced by
the
Servicer and any predecessor servicer in accordance with the terms
of
the
Mortgage Note. With respect to any Mortgage Loan which provides for
an
adjustable
interest rate, all rate adjustments have been performed in
accordance
with the terms of the related Mortgage Note or subsequent
modifications, if any. With respect to escrow deposits and
Escrow
Payments,
if any, all such payments are in the possession of, or under
the
control
of, the Seller or the Servicer and there exist no deficiencies
in
connection
therewith for which customary arrangements for repayment
<PAGE>
thereof
have not been made. No escrow deposits or Escrow Payments or
other
charges or
payments due the Seller or the Servicer have been capitalized
under any
Mortgage or the related Mortgage Note and no such escrow
deposits
or Escrow Payments are being held by the Seller or the Servicer
for any
work on a Mortgaged Property which has not been completed;
(xxiii) The Mortgaged Property is free of damage and waste and
there
is no
proceeding
