Exhibit 99.1
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TERWIN ADVISORS LLC,
SELLER
and
MERRILL LYNCH MORTGAGE INVESTORS, INC.,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of October 1, 2005
Terwin Mortgage Trust
(Asset-Backed Certificates, Series TMTS 2005-16HE)
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TABLE OF CONTENTS
Page
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........................................12
Section 1.06. Assignment by
Depositor.............................12
ARTICLE II
MISCELLANEOUS PROVISIONS................................12
Section 2.01.
Binding Nature of Agreement; Assignment..............12
Section 2.02.
Entire Agreement.....................................12
Section 2.03.
Amendment............................................12
Section 2.04.
Governing Law........................................13
Section 2.05.
Severability of Provisions...........................13
Section 2.06.
Indulgences; No Waivers..............................13
Section 2.07.
Headings Not to Affect Interpretation................14
Section 2.08.
Benefits of Agreement................................14
Section 2.09.
Counterparts.........................................14
SCHEDULE
SCHEDULE A Mortgage Loan Schedule
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This
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of October
1,
2005 (the "Agreement"), is executed by and
between Terwin Advisors LLC (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 October
1, 2005, among the Depositor, the
Seller, U.S. Bank National Association, as
trustee (the "Trustee"), JPMorgan
Chase Bank, N.A., as servicing
administrator, securities administrator and
backup servicer and Specialized Loan
Servicing, LLC, as servicer (the
"Servicer").
W I T N E S S E T H:
WHEREAS,
pursuant to certain mortgage loan purchase agreements and the
bring down letters related to such
agreements (each, a "Transfer Agreement"),
the Seller has purchased or received from
various originators (each, a
"Transferor") 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, other than the
servicing rights, in the Mortgage Loans to
the Depositor, to assign all of its rights
and interest under each Transfer
Agreement, 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, other than the
servicing rights, 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 $530,618,693.28. 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
October 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.
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Concurrently with the execution and delivery of this Agreement, the
Seller
hereby assigns to the Depositor all of its
rights and interest under each
Transfer Agreement, other than the Seller's
right to indemnification from the
related Transferor for breaches of
representations and warranties under such
Transfer Agreement. Concurrently with the
execution hereof, the Depositor
tenders the purchase price of
$545,565,163.38. The Depositor hereby accepts such
assignment, and shall be entitled to
exercise all such rights of the Seller
under each Transfer Agreement, as if the
Depositor had been a party to such
agreement.
Notwithstanding the foregoing, if the Depositor pursues any remedy
against
the Seller pursuant to Section 1.04(b) and
the Seller fully performs such
remedy, and to the extent such remedy could
also be enforced against the
Transferor under the related Transfer
Agreement, the Depositor shall be deemed
to have reassigned such rights and remedies
that the Depositor has against such
Transferor back to the Seller but only to
the extent necessary to permit the
Seller to pursue such remedies against the
related Transferor pursuant to the
terms of the related Transfer Agreement and
only with respect to the Mortgage
Loan(s) as to which such remedy has been
fully performed by the Seller.
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 applicable Transfer Agreement.
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 applicable
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 Custodian, on behalf of the Trustee,
for the Mortgage Loans for the
Depositor. The Custodian, on behalf of the
Trustee, is required to review,
within 90 days following the Closing Date,
each applicable Mortgage File. If in
the course of such review the Custodian, on
behalf of 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:
(1) The Seller is a Delaware limited liability company duly
organized,
validly existing and in good standing under the laws governing
its
creation and existence and has full 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;
(2) The execution and delivery by the Seller of this Agreement
have
been duly
authorized by all necessary 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,
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any of the
provisions of any law, governmental rule, regulation, judgment,
decree or
order binding on the Seller or its properties which conflict or
breach
would have a material adverse effect on the ability of the
Seller
to perform
hereunder;
(3) 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;
(4) 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
(5) 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
adversely
affect its ability to perform its obligations under this
Agreement.
(b) The
representations and warranties of each Transferor with respect
to
the Mortgage Loans in the applicable
Transfer Agreement were made as of the
Closing Date. To the extent that any fact,
condition or event with respect to a
Mortgage Loan constitutes a breach of both
(i) a representation or warranty of a
Transferor under the applicable Transfer
Agreement and (ii) a representation or
warranty of the Seller under this
Agreement, the Depositor shall have the right
to enforce the obligations of the Seller
and to the extent that the Seller fails
to fulfill its contractual obligations
hereunder then the Depositor shall have
the right to enforce the obligations of
such Transferor under any applicable
representation or warranty made by it. If a
Transferor fulfills its obligations
under the provisions of the applicable
Transfer Agreement by substituting for
the affected Mortgage Loan a mortgage loan
which is not a Replacement Mortgage
Loan, the Seller shall, in exchange for
such substitute mortgage loan, provide
the Depositor (a) with the applicable
Purchase Price for the affected Mortgage
Loan or (b) within the two year period
following the Closing Date, with a
Replacement Mortgage Loan for such affected
Mortgage Loan. Notwithstanding the
foregoing, the Depositor will enforce the
representations and warranties
contained in Section 1.04(b) (8), (44),
(45) and (47) only against the Seller
and upon such enforcement any rights and
remedies of the Depositor against the
related Transferor regarding such
representations and warranties will be
considered to be reassigned by the
Depositor back to the Seller. Subject to the
foregoing, the Seller represents and
warrants that as of the Closing Date, as to
each Mortgage Loan, that:
(1) The information set forth in the Mortgage Loan Schedule is
complete,
true and correct in all material respects as of the Cut-off
Date;
(2) With respect to a Mortgage Loan that is not a Co-op Loan,
the
Mortgage
creates a first lien or a first priority ownership interest in
an
estate in fee
simple in real property securing the related Mortgage Note.
With
respect to a Mortgage Loan that is a Co-op Loan, the Mortgage
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creates a
first lien or a first priority ownership interest in the stock
ownership
and leasehold rights associated with the cooperative unit
securing
the related Mortgage Note;
(3) All payments due on or prior to the Cut-off Date for such
Mortgage
Loan have been made as of the Closing Date and the Mortgage
Loan
is not 31
days or more delinquent in payment and has not been dishonored,
except
that, as of the Cut-off Date, no more than approximately 1.50%
of
the
Mortgage Loans may be between 31 days and 60 days delinquent (in
each
case, by
aggregate Cut-off Date Principal Balance of all of the Mortgage
Loans).
The Seller has not advanced funds, or induced, solicited or to
their
actual knowledge, received any advance of funds from a party
other
than the
owner of the related Mortgaged Property, directly or
indirectly,
for the
payment of any amount required by the Mortgage Note or
Mortgage;
(4) All taxes, governmental assessments, insurance premiums,
water,
sewer and
municipal charges, leasehold payments or ground rents which
previously
became due and owing have been paid, or escrow funds have been
established in an amount sufficient to pay for every such escrowed
item
which
remains unpaid and which has been assessed but is not yet due
and
payable;
(5) The terms of the Mortgage Note and the Mortgage have not
been
impaired,
waived, altered or modified in any respect, except by written
instruments which have been recorded to the extent any such
recordation is
required
by law, or, necessary to protect the interest of the Depositor.
No
instrument of waiver, alteration or modification has been executed.
No
Mortgagor
has been released, in whole or in part, from the terms thereof
except in
connection with an assumption agreement and which assumption
agreement
is part of the Mortgage File and the terms of which are
reflected
in the Mortgage Loan Schedule;
(6) The Mortgage Note and the Mortgage are not subject to any
right
of
rescission, set-off, counterclaim or defense, including,
without
limitation, the defense of usury, nor will the operation of any of
the
terms of
the Mortgage Note or the Mortgage, or the exercise of any right
thereunder, render the Mortgage Note or 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; and the Mortgagor was not a debtor in any state or
federal
bankruptcy or insolvency proceeding at the time the Mortgage
Loan
was
originated;
(7) All buildings or other customarily insured improvements upon
the
Mortgaged
Property are insured by an insurer acceptable under the Fannie
Mae
Guides, against loss by fire, hazards of extended coverage and
such
other
hazards as are provided for in the Fannie Mae Guides or by
Freddie
Mac, as
well as all additional requirements set forth in the Pooling
Agreement.
All such insurance policies contain a standard mortgagee clause
naming the
Seller, its successors and assigns as loss payee and all
premiums
thereon have been paid. All such standard hazard policies are
in
full force
and effect. If required by the Flood Disaster Protection Act of
1973, as
amended, the Mortgage Loan is covered by a flood insurance
policy
meeting
the requirements of the current guidelines of the Federal
Insurance
Administration which policy conforms to Fannie Mae and Freddie
Mac
requirements, as well as all additional requirements set forth in
the
Pooling
Agreement. Such policy was issued by an insurer acceptable
under
Fannie Mae
or Freddie Mac guidelines. The Mortgage obligates the Mortgagor
thereunder
to maintain all such insurance at the Mortgagor's cost and
expense,
and upon the Mortgagor's failure to do so, authorizes the
holder
of the
Mortgage to maintain such insurance at the Mortgagor's cost and
expense
and to seek reimbursement therefor from the Mortgagor;
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(8) Any and all requirements of any federal, state or local law
including,
without limitation, usury, truth-in-lending, real estate
settlement
procedures, consumer credit protection, equal credit
opportunity, disclosure and all applicable predatory and abusive
lending
laws
applicable to the Mortgage Loan have been complied with in all
material
respects. To the best of the Seller's knowledge, any and all
statements
or acknowledgments required to be made by the Mortgagor
relating
to such requirements which were in the Mortgage File when such
Mortgage
Loan was acquired by the Seller are and will remain in the
Mortgage
File;
(9) The Mortgage has not been satisfied, canceled or
subordinated,
in whole
or in part, or rescinded, 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 release, cancellation,
subordination or rescission;
(10) The related Mortgage is a valid, subsisting, enforceable
and
perfected
first lien on the Mortgaged Property, including for Mortgage
Loans that
are not Co-op Loans, all buildings on the Mortgaged Property
and all
installations and mechanical, electrical, plumbing, heating and
air
conditioning systems affixed to such buildings, and all
additions,
alterations and replacements made at any time with respect to
the
foregoing
securing the Mortgage Note's original principal balance. The
Mortgage
and Mortgage Note do not contain any evidence of any security
interest
or other interest or right thereto. Such lien is free and clear
of all
adverse claims, liens and encumbrances having priority over the
lien of
the Mortgage, subject only to (1) the lien of non-delinquent
current
real property taxes and assessments not yet due and payable,
(2)
covenants,
conditions and restrictions, rights of way, easements and other
matters of
the public record as of the date of recording which are
acceptable
to mortgage lending institutions generally and either (A) which
are
referred to or otherwise considered in the appraisal made for
the
originator
of the Mortgage Loan, or (B) which do not adversely affect the
appraised
value of the Mortgaged Property as set forth in such appraisal,
and (3)
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. Any security agreement, chattel
mortgage
or equivalent document related to and delivered in connection
with the
Mortgage Loan establishes and creates a valid, subsisting,
enforceable and perfected first lien and first priority security
interest,
in each
case, on the property described therein, and the Seller has the
full right
to sell and assign the same to the Depositor;
(11) The Mortgage Note and the related Mortgage are original
and
genuine
and each is the legal, valid and binding obligation of the
maker
thereof,
enforceable in all respects in accordance with its terms
subject
to
bankruptcy, insolvency, moratorium, reorganization and other laws
of
general
application affecting the rights of creditors and by general
equitable
principles. All parties to the Mortgage Note and the Mortgage
had the legal
capacity to enter into the Mortgage Loan and to execute and
deliver
the Mortgage Note and the Mortgage. The Mortgage Note and the
Mortgage
have been duly and properly executed by such parties. To the
best
of the
Seller's knowledge, the Mortgagor is a natural person who is a
party to
the Mortgage Note and the Mortgage is in an individual capacity
or family
trust that is guaranteed by a natural person. No fraud, error,
omission,
misrepresentation, negligence or similar occurrence with
respect
to a
Mortgage Loan has taken place on the part of Seller or the
Mortgagor,
or, on the
part of any other party involved in the origination of the
Mortgage
Loan. The proceeds of the Mortgage Loan have been fully
disbursed
and there
is no requirement for future advances thereunder, and any and
all
requirements as to completion of any on-site or o
