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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 March 1, 2005
Specialty Underwriting and Residential Finance Trust
(Mortgage Loan Asset-Backed Certificates, Series 2005-BC1)
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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 March 1, 2005
(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 March 1,
2005, among the Depositor, JPMorgan
Chase Bank, N.A., as trustee (the
"Trustee") and Litton Loan Servicing, LP, as
servicer (the "Servicer").
WITNESSETH:
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 $784,653,856. 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 March 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.
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
2005-BC1, 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
2005-BC1."
(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 fo
