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Exhibit 99.2
EXECUTION COPY
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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 November 1, 2005
Merrill Lynch Mortgage Investors Trust
(Mortgage Loan Asset-Backed Certificates, Series 2005-HE2)
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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................................ 2
Section 1.03.
Review of
Documentation.............................. 2
Section 1.04.
Representations
and Warranties of the Seller......... 2
Section 1.05.
Grant
Clause......................................... 5
Section 1.06.
Assignment by
Depositor.............................. 5
ARTICLE II MISCELLANEOUS
PROVISIONS.................................... 6
Section 2.01.
Binding Nature
of Agreement; Assignment.............. 6
Section 2.02.
Entire
Agreement..................................... 6
Section 2.03.
Amendment............................................ 6
Section 2.04. Governing
Law........................................ 7
Section 2.05.
Severability of
Provisions........................... 7
Section 2.06.
Indulgences; No
Waivers.............................. 7
Section 2.07.
Headings Not to
Affect Interpretation................ 7
Section 2.08.
Benefits of
Agreement................................ 7
Section 2.09.
Counterparts......................................... 7
EXHIBITS
EXHIBIT A TRANSFER
AGREEMENTS......................................... 1
EXHIBIT B
TRANSFERORS.................................................
1
SCHEDULE
SCHEDULE A MORTGAGE LOAN
SCHEDULE...................................... 1
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This MORTGAGE
LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of November 1,
2005 (the "Agreement"), is executed by and
between Merrill Lynch Mortgage
Lending, Inc. ("MLML" or 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 November
1, 2005, among the Depositor, Wells
Fargo Bank, N. A., as trustee (the
"Trustee") and Wilshire Credit Corporation,
as servicer ("Servicer").
WITNESSETH:
WHEREAS,
pursuant to certain master mortgage loan purchase and interim
servicing agreements listed on Exhibit A
hereto (collectively, the "Transfer
Agreements") between the Seller and each of
the originators listed on Exhibit B
hereto (collectively, the "Transferors"),
Seller 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, except for the Transfer Agreement between
First Franklin Financial Corporation
("First Franklin") and the Seller, is
supplemented by a related letter, each
dated as of November 30, 2005 between
each related Transferor and the Seller
(each, a "Bring Down Letter");
WHEREAS, the
Seller 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 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
$702,830,067.05. Such conveyance
MLMI 2005-HE2
MLSA-MLML
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includes, without limitation, the right to
all distributions of principal and
interest received on or with respect to the
Mortgage Loans on or after November
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 and delivery of this Agreement, the Seller
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
$[INTENTIONALLY OMITTED]. The Depositor
hereby accepts such assignment, and
shall be entitled to exercise all such
rights of the Seller 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 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 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 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 45 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 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; 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 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
representations and warranties of each Transferor with respect
to
the Mortgage Loans contained in the
applicable Transfer Agreement were made as
of the date of such Transfer Agreement and,
with the exception of the
representations and warranties of First
Franklin, brought forward to the Closing
Date pursuant to the applicable Bring Down
Letter. The representations and
warranties of each Transferor with respect
to the Mortgage Loans contained in
the applicable Bring Down Letter are being
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 or
Bring Down Letter and (ii) a
representation or warranty of the Seller
under this Agreement, the sole right or
remedy of the Depositor with respect to a
breach by the Seller of such
representation and warranty (other than a
breach by the Seller of the
representations and warranties made
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pursuant to Sections 1.04(b)(x) and
1.04(b)(xi)) shall be the right to enforce
the obligations of the applicable
Transferor under any applicable representation
or warranty made by it; provided, however,
that to the extent any of (a)
Acoustic Home Loans, LLC ("Acou
