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TERWIN ADVISORS LLC,
SELLER
and
MERRILL LYNCH MORTGAGE INVESTORS, INC.,
PURCHASER
MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT
Dated as of December 1, 2004
Terwin Mortgage Trust
(Asset-Backed Certificates, Series TMTS 2004-22SL)
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Table of Contents
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.........................................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
This MORTGAGE LOAN SALE AND ASSIGNMENT AGREEMENT, dated as of
December 1,
2004 (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 December 1, 2004, among the
Depositor, the
Seller, U.S. Bank National Association, as trustee (the "Trustee"),
Chase
Manhattan Mortgage Corporation, as master servicer, JPMorgan Chase
Bank, N.A.,
as 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 $241,270,615.68. 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.
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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 $241,270,615.68. 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 45 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 and is
identified on the final mortgage loan schedule as a second lien
Mortgage
Loan, the Mortgage creates a second lien or a second 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
and is
identified
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on the final mortgage loan schedule as a second lien Mortgage Loan,
the
Mortgage creates a second lien or a second 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, approximately 0.20% of the Mortgage
Loans are
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;
4
(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 creates a second lien or a second
priority
ownership interest in an estate in fee simple in real property
securing the
related Mortgage Note. The related Mortgage is a valid, subsisting,
enforceable and perfected second lien on the Mortgaged Property,
subject
only to (1) the related first lien, (2) the lien of non-delinquent
current
real property taxes and assessments not yet due and payable, (3)
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 (4)
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 second lien and second 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 off-site
improvements and
as to disbursements of any escrow funds therefor have been complied
with.
All costs, f
