ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENTAssignment and Assumption Agreement |
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Search Assignment and Assumption Agreement by:
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Exhibit 99.2
APPOINTMENT, ASSUMPTION
AND RECOGNITION AGREEMENT
This is an Appointment,
Assumption and Recognition Agreement (this
"AAR Agreement") made as of January 1, 2007, among Merrill Lynch
Mortgage
Investors, Inc. as depositor (the "Depositor"), Merrill Lynch
Mortgage Lending,
Inc. as servicing rights owner (the "Servicing Rights Owner"), Wells
Fargo Bank,
National Association as master servicer (the "Master Servicer") and
securities
administrator (the "Securities Administrator"), HSBC Bank USA,
National
Association as trustee (the "Trustee") and Wells Fargo Bank, National
Association as successor servicer (the "Company").
WITNESSETH
WHEREAS, the Depositor, the
Master Servicer, the Securities
Administrator and the Trustee entered into the Stack II Pooling and Servicing
Terms (the "Pooling and Servicing Agreement"), dated as of October 1,
2006,
relating to Merrill Lynch Mortgage Investors Trust, Series 2006-AF2, Mortgage
Pass-Through Certificates;
WHEREAS, PHH Mortgage
Corporation ("PHH"), formerly known as Cendant
Mortgage Corporation having an address at 3000 Leadenhall Rd, Mt. Laurel, New
Jersey 08054, is currently servicing the Mortgage Loans identified on
Attachment
1 attached hereto until January 1, 2007 (the "Subject Mortgage
Loans") pursuant
to a servicing agreement between the Depositor and PHH;
WHEREAS, pursuant to Section
3.20 of the Pooling and Servicing
Agreement, the Servicing Rights Owner has the right to transfer the servicing
responsibilities of PHH with respect to the Subject Mortgage Loans without
cause
upon the satisfaction of certain conditions set forth in the Pooling and
Servicing Agreement;
WHEREAS, the Depositor and the
Servicing Rights Owner desire to
effectuate the replacement of PHH as the Servicer with respect to the Subject
Mortgage Loans;
NOW, THEREFORE, in
consideration of the mutual promises contained
herein the parties hereto agree that the Subject Mortgage Loans shall be
subject
to the terms of this AAR Agreement. Capitalized terms used herein but not
defined shall have the meanings ascribed to them in the Pooling and Servicing
Agreement and the Wells Fargo Servicing Agreement.
Appointment of Company
1. (a) The Servicing Rights Owner
hereby appoints the Company as successor
servicer under the Pooling and Servicing Agreement with respect to the Subject
Mortgage Loans. In addition, the Servicing Rights Owner hereby provides written
notification to PHH of its
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termination as Servicer with respect to the Subject Mortgage Loans to be
effective on January 1, 2007 (the "Termination Date").
(b) Each of the Master
Servicer and the Trustee acknowledges the
appointment of Company as a
"qualified servicer" under the Pooling and
Servicing Agreement and hereby
designates the Company as the Servicer of
the Subject Mortgage Loans from and
after the Termination Date.
(c) PHH acknowledges the
transfer of the servicing of the Subject
Mortgage Loans to the Company on the
Termination Date and, notwithstanding
such transfer, PHH acknowledges and
confirms that it will fulfill its
ongoing obligations under the
Mortgage Loan Flow Purchase, Sale and
Servicing Agreement, dated as of
March 27, 2001, among Merrill Lynch
Mortgage Capital, Inc.
("MLMC"), Bishop's Gate Residential Mortgage Trust
and PHH, as modified by the Assignment,
Assumption and Recognition
Agreement, dated as of October 1,
2006, among MLMC, the Servicing Rights
Owner and PHH, and as further
modified by the Assignment, Assumption and
Recognition Agreement, dated as of
October 1, 2006, among PHH, the
Depositor and the Servicing Rights
Owner (collectively, the "PHH Servicing
Agreement") in respect of the
period during which it acted as servicer of
the Subject Mortgage Loans,
including without limitation, its obligations
to provide a compliance statement
pursuant to Section 7A.04 of the PHH
Servicing Agreement, an Assessment
of Compliance, an Accountant's
Attestation and a Sarbanes
Certification pursuant to Section 7A.05 of the
PHH Servicing Agreement.
In addition, PHH represents and warrants to
the parties hereto as
of the date hereof that it has been
assigned a servicer rating of "Strong"
from S&P and "RPS1-"
from Fitch.
Representations, Warranties and Covenants
2. The following representations and
warranties are hereby made by the
Depositor to the Servicing Rights Owner, the Company, the Master Servicer and
the Trustee as of the date hereof:
(a) The Depositor is duly
organized and is validly existing as a
corporation in good standing under
the laws of the jurisdiction of its
formation and has full power and
authority (corporate and other) necessary
to own or hold its properties and to
conduct its business as now conducted
by it and to enter into and perform
its obligations under this AAR
Agreement.
(b) It has the full
corporate power and authority to execute,
deliver and perform, and to enter
into and consummate the transactions
contemplated by this AAR Agreement
and has duly authorized by all necessary
corporate action on its part the
execution, delivery and performance of
this AAR Agreement; and this AAR
Agreement, assuming the due authorization,
execution and delivery hereof by the
other parties hereto, constitutes its
legal, valid and binding obligation,
enforceable against it in accordance
with its terms, except that (1) the
enforceability hereof may be limited by
bankruptcy, insolvency, moratorium,
receivership and other similar laws
relating to creditors' rights generally and (2) the remedy of specific
performance and injunctive and other
forms of equitable relief may be
subject to equitable defenses and to
the discretion of the court before
which any proceeding therefor may be
brought and further subject to public
policy with respect to indemnity and
contribution under applicable
securities law.
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(c) The execution and
delivery of this AAR Agreement by it, the
consummation of any other of the
transactions contemplated by this AAR
Agreement, and the fulfillment of or
compliance with the terms hereof are
in its ordinary course of business
and will not (1) result in a material
breach of any term or provision of its charter
or by-laws, (2) materially
conflict with, result in a material
breach, violation or acceleration of,
or result in a material default
under, the terms of any other material
agreement or instrument to which it
is a party or by which it may be bound,
or (3) constitute a material
violation of any statute, order or regulation
applicable to it of any court,
regulatory body, administrative agency or
governmental body having
jurisdiction over it; and it is not in breach or
violation of any material indenture
or other material agreement or
instrument, or in violation of any
statute, order or regulation of any
court, regulatory body,
administrative agency or governmental body having
jurisdiction over it which breach or
violation may impair its ability to
perform or meet any of its
obligations under this AAR Agreement.
(d) No litigation is
pending or, to the best of its knowledge,
threatened, against it that would
materially and adversely affect the
execution, delivery or
enforceability of this AAR Agreement or its ability
to perform any of its obligations
under this AAR Agreement in accordance
with the terms hereof.
(e) No consent, approval,
authorization or order of any court or
governmental agency or body is
required for its execution, delivery and
performance of, or compliance with,
this AAR Agreement or the consummation
of the transactions contemplated
hereby, or if any such consent, approval,
authorization or order is required,
it has obtained the same.
3. The following representations and
warranties are hereby made by the
Servicing Rights Owner to the Depositor, the Company, the Master Servicer and
the Trustee as of the date hereof:
(a) The Servicing Rights
Owner is duly organized and is validly
existing as a corporation in good
standing under the laws of the
jurisdiction of its formation and
has full power and authority (corporate
and other) necessary to own or hold
its properties and to conduct its
business as now conducted by it and
to enter into and perform its
obligations under this AAR
Agreement.
(b) It has the full
corporate power and authority to execute,
deliver and perform, and to enter
into and consummate the transactions
contemplated by this AAR Agreement
and has duly authorized by all necessary
corporate action on its part the
execution, delivery and performance of
this AAR Agreement; and this AAR
Agreement, assuming the due authorization,
execution and delivery hereof by the
other parties hereto, constitutes its
legal, valid and binding obligation,
enforceable against it in accordance
with its terms, except that (1) the
enforceability hereof may be limited by
bankruptcy, insolvency, moratorium,
receivership and other similar laws
relating to creditors' rights
generally and (2) the remedy of specific
performance and injunctive and other
forms of equitable relief may be
subject to equitable defenses and to
the discretion of the court
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before which any proceeding therefor
may be brought and further subject to
public policy with respect to
indemnity and contribution under applicable
securities law.
(c) The execution and
delivery of this AAR Agreement by it, the
consummation of any other of the
transactions contemplated by this AAR
Agreement, and the fulfillment of or
compliance with the terms hereof are
in its ordinary course of business
and will not (1) result in a material
breach of any term or provision of
its charter or by-laws, (2) materially
conflict with, result in a material
breach, violation or acceleration of,
or result in a material default
under, the terms of any other material
agreement or instrument to which it
is a party or by which it may be bound,
or (3) constitute a material
violation of any statute, order or regulation
applicable to it of any court,
regulatory body, administrative agency or
governmental body having
jurisdiction over it; and it is not in breach or
violation of any material indenture
or other material agreement or
instrument, or in violation of any
statute, order or regulation of any
court, regulatory body,
administrative agency or governmental body having
jurisdiction over it which breach or
violation may impair its ability to
perform or meet any of its
obligations under this AAR Agreement.
(d) No litigation is
pending or, to the best of its knowledge,
threatened, against it that would
materially and adversely affect the
execution, delivery or
enforceability of this AAR Agreement or its ability
to perform any of its obligations
under this AAR Agreement in accordance
with the terms hereof.
(e) No consent, approval,
authorization or order of any court or
governmental agency or body is required
for its execution, delivery and
performance of, or compliance with,
this AAR Agreement or the consummation
of the transactions contemplated
hereby, or if any such consent, approval,
authorization or order is required,
it has obtained the same.
(f) It has the right to
transfer the servicing obligations of PHH
as the Servicer of the Subject
Mortgage Loans pursuant to Section 3.20 of
the Pooling and Servicing Agreement
and such transfer shall be exercised in
accordance with the terms and
conditions of the Pooling and Servicing
Agreement and all applicable law.
4. The following representations,
warranties and covenants are hereby made
by the Company to the Depositor, the Servicing Rights Owner, the Master
Servicer
and the Trustee as of the date hereof:
(a) The Company is duly
organized, validly existing and in good
standing under the laws of the
United States of America, and has all
requisite power and authority to
service and administer the Subject
Mortgage Loans and otherwise to
perform the obligations with respect to the
Subject Mortgage Loans set forth in
the Seller's Warranties and Servicing
Agreement (WFHM Mortgage Loan Series
2006-W90) (the "Wells Fargo Servicing
Agreement"), dated as of
November 1, 2006, between Merrill Lynch Bank, USA
and the Company, as modified by this
AAR Agreement. A copy of the Wells
Fargo Servicing Agreement is
attached hereto as Attachment 2.
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(b) The Company has full
power and authority to execute, deliver
and perform its obligations under
this AAR Agreement, and to consummate the
transactions set forth herein. The
consummation of the transactions
contemplated by this AAR Agreement
is in the ordinary course of the
Company's business and will not
conflict with, or result in a breach of,
any of the terms, conditions or
provisions of the Company's charter or
by-laws or any legal restriction, or
any material agreement or instrument
to which the Company is now a party
or by which it is bound, or result in
the violation of any law, rule,
regulation, order, judgment or decree to
which the Company or its property is
subject. The execution, delivery and
performance by the Company of this
AAR Agreement and the consummation by it
of the transactions contemplated
hereby, have been duly authorized by all
necessary action on the part of the
Company. This AAR Agreement has been
duly executed and delivered by the
Company, and, upon the due
authorization, execution and
delivery by the other parties hereto, will
constitute the valid and legally
binding obligation of the Company,
enforceable against the Company in
accordance with its terms except as
enforceability may be limited by
bankruptcy, reorganization, insolvency,
moratorium or other similar laws
administered by the FDIC affecting the
contract obligations of insured
banks now or hereafter in effect, and by
general principles of equity
regardless of whether enforceability is
considered in a proceeding in equity
or at law.
(c) No consent, approval,
order or authorization of, or
declaration, filing or registration
with, any governmental entity is
required to be obtained or made by
the Company in connection with the
execution, delivery or performance
by the Company of this AAR Agreement, or
the consummation by it of the
transactions contemplated hereby.
(d) The Company accepts
the appointment as successor Servicer of
the Subject Mortgage Loans under the
Pooling and Servicing Agreement.
(e) The Company shall
service the Subject Mortgage Loans in
accordance with the terms and
provisions of the Wells Fargo Servicing
Agreement, as modified by this AAR
Agreement, for the exclusive benefit of
the Trustee, on behalf of the
holders of the Merrill Lynch Mortgage
Investors Trust, Series 2006-AF2,
Mortgage Pass-Through Certificates (the
"Certificateholders"). The
Company shall establish a Custodial Account and
an Escrow Account under the Wells
Fargo Servicing Agreement with respect to
the Subject Mortgage Loans in favor
of Trustee on behalf of the
Certificateholders, and shall remit
collections received on the Subject
Mortgage Loans to the appropriate
account as required by the Wells Fargo
Servicing Agreement. The Custodial
Account and the Escrow Account each
shall be entitled "Wells Fargo
Bank, National Association, as Servicer, in
trust for Wells Fargo Bank, National
Association, as Securities
Administrator for Merrill Lynch
Mortgage Investors Trust MLMI Series
2006-AF2 Mortgage Pass-Through Certificates"
and shall be an Eligible
Account.
(f) (1) No default or
servicing related performance trigger has
occurred as to any other
securitization due to any act or failure to act of
the Company; (2) no material
noncompliance with applicable servicing
criteria as to any other
securitization has been disclosed or reported by
the Company; (3) the Company has not
been terminated as servicer in a
residential mortgage loan
securitization, either due to a servicing default
or
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to application of a servicing
performance test or trigger; (4) no material
changes to the Company's servicing
policies and procedures for similar
loans has occurred in the preceding
three years; (5) there are no aspects
of the Company's financial condition
that could reasonably be expected to
have a material adverse impact on
the performance by the Company of its
obligations hereunder; (6) there are
no legal proceedings pending, or known
to be contemplated by governmental
authorities, against the Company that
could be material to investors in
the securities issued; and (7) there are
no affiliations, relationships or
transactions relating to the Company of a
type that are described under Item
1119 of Regulation AB (other than with
respect to the Company's affiliation
with the Custodian, the Master
Servicer and the Securities
Administrator).
Recognition of Assignee
5. From and after the Termination
Date, the Company shall recognize the
Trustee, on behalf of the Certificateholders, as owner of the Subject Mortgage
Loans and will service the Subject Mortgage Loans in accordance with the Wells
Fargo Servicing Agreement (as modified herein), the terms of which are
incorporated herein by reference. The Company hereby acknowledges that the
Mortgage Loans are part of a REMIC. In no event will the Company service the
Mortgage Loans in a manner that would (i) cause the REMIC to fail to qualify as
a REMIC or (ii) result in the imposition of a tax upon the REMIC (including but
not limited to the tax on prohibited transactions as defined in Section
860F(a)(2) of the Code and the tax on contributions to a REMIC set forth in
Section 860G(d) of the Code).
The Company hereby acknowledges
that the Trustee, acting pursuant to
the terms of the Pooling and Servicing Agreement, has the right to enforce all
obligations of the Company, as they relate to the Subject Mortgage Loans, under
the Wells Fargo Servicing Agreement, as modified by this Agreement. Such right
will include, without limitation, the right to indemnification, the right to
terminate the Company under the Wells Fargo Servicing Agreement upon the
occurrence of an Event of Default thereunder and the right to exercise certain
rights of consent and approval relating to actions taken by the Company under
the Wells Fargo Servicing Agreement. In addition, any notice required to be
given by the "Purchaser" pursuant to Section 10.01 of the Wells Fargo
Servicing
Agreement shall be given by the Trustee. The Company further acknowledges that
pursuant to the terms of the Pooling and Servicing Agreement, the Master
Servicer is required to monitor the performance of the Company under the Wells
Fargo Servicing Agreement, as modified by this Agreement. The Master Servicer
shall have the right to receive all remittances required to be made by the
Company under the Wells Fargo Servicing Agreement, the right to receive all
monthly reports and other data required to be delivered by the Company under
the
Wells Fargo Servicing Agreement, as modified by this Agreement, the right to
examine the books and records of the Company under the Wells Fargo Servicing
Agreement and the right to indemnification under the Wells Fargo Servicing
Agreement. In addition, if the Company shall fail to remit any payment pursuant
to the Wells Fargo Servicing Agreement, as modified by this Agreement, the
Master Servicer shall notify the Trustee and the Trustee shall notify the
Company of such failure as set forth in Section 10.01 of the Wells Fargo
Servicing Agreement.
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6. In connection therewith, the
Company hereby agrees that all remittances
required to be made with respect to the Subject Mortgage Loans pursuant to the
Wells Fargo Servicing Agreement will be made in accordance with the following
wire transfer instructions:
Bank: Wells Fargo
Bank, N.A.
ABA Routing Number:
121-000-248
Account Name: Corporate
Trust Clearing
Account Number:
3970771416
For Credit to: MLMI
Series 2006-AF2, Acct# 50961200
and the Company shall deliver all reports required to be delivered under the
Wells Fargo Servicing Agreement to the Master Servicer at:
Wells Fargo Bank,
N.A.
9062 Old Annapolis
Road
Columbia, Maryland
21045
Attention: Client
Manager - MLMI 2006-AF2
It is the intention of the parties hereto
that this AAR Agreement shall be
binding upon and for the benefit of the respective successors and assigns of
the
parties hereto.
Modification of the Wells Fargo Servicing Agreement
7. In connection with the servicing
and administration of the Subject
Mortgage Loans, the Wells Fargo Servicing Agreement shall be modified as
follows:
(a) The definition of
"Remittance Date" in Article I of the Wells
Fargo Servicing Agreement is
modified by deleting the words "immediately
following" and replacing them
with "immediately preceding".
(b) Article I of the Wells
Fargo Servicing Agreement is modified
by deleting the definition of
"Business Day" in its entirety and replacing
it with the following:
"Business Day: Any
day other than (i) a Saturday or Sunday, or
(ii) a day on which the New
York Stock Exchange or Federal Reserve is
closed or on which banking and
savings and loan institutions in the
State of Maryland, State of
Minnesota or State of California are
authorized or obligated by law
or executive order to be closed."
(c) Section 3.02 of the
Wells Fargo Servicing Agreement is
modified by deleting such section in
its entirety and replacing it with the
following:
"[Reserved].
(d) Section 4.01 of the
Wells Fargo Servicing Agreement is
modified by adding the following new
paragraph after the second paragraph
of such section.
"Notwithstanding the
foregoing, in the event that any Mortgage
Loan is in default or, in the
judgment of the Company, such default is
reasonably foreseeable, the
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Company, consistent with
Accepted Servicing Practices may waive,
modify or vary any term of such
Mortgage Loan (including, but not
limited to, modifications that
change the Mortgage Interest Rate,
forgive the payment of principal or interest
or extend the final
maturity date of such Mortgage
Loan), accept payment from the related
Mortgagor of an amount less
than the scheduled principal balance in
final satisfaction of such
Mortgage Loan, or consent to the
postponement of strict
compliance with any such term or otherwise
grant indulgence to any
Mortgagor if in the Company's determination
such waiver, modification,
postponement or indulgence is not
materially adverse to the
interests of the Purchaser."
(e) The first paragraph of
Section 4.04 of the Wells Fargo
Servicing Agreement is modified by
replacing the phrase "Wells Fargo Bank,
N.A., in trust for the Purchaser
and/or subsequent purchasers of Mortgage
Loans - P&I." with
"Wells Fargo Bank, N.A. in trust for Wells Fargo Bank,
N.A., as master servicer on behalf
of the Merrill Lynch Mortgage Investors
Trust, Series 2006-AF2."
(f) Section 4.04(viii) of the Wells Fargo
Servicing Agreement is
modified by deleting such section in
its entirety and replacing it with the
following:
"with respect to each
Principal Prepayment an amount (to be paid
by the Company out of its
funds) which, when added to all amounts
allocable to interest received
in connection with the Principal
Prepayment, equals one month's
interest on the amount of principal so
prepaid at the Mortgage Loan
Remittance Rate; provided, however, that
in no event shall the aggregate
of deposits made by the Company
pursuant to this clause (viii)
exceed the aggregate amount of the
Company's Servicing Fee in the
calendar month in which such deposits
are required;"
(g) The first paragraph of
Section 4.06 of the Wells Fargo
Servicing Agreement is modified by
replacing the phrase "Wells Fargo Bank,
N.A., in trust for the Purchaser
and/or subsequent purchasers of the
Residential Mortgage Loans, and
various Mortgagors - T&I." with "Wells
Fargo Bank, N.A. in trust for Wells
Fargo Bank, N.A., as master servicer on
behalf of the Merrill Lynch Mortgage
Investors Trust, Series 2006-AF2."
(h) Section 5.01 of the Wells Fargo
Servicing Agreement is
modified by deleting the second
paragraph in its entirety and replacing it
with the following:
"With respect to any
remittance received by the Purchaser after
the Business Day on which such payment was
due, the Company shall pay
to the Purchaser interest on
any such late payment at an annual rate
equal to the Prime Rate,
adjusted as of the date of each change, plus
three (3) percentage points,
but in no event greater than the maximum
amount permitted by applicable
law. Such interest shall be deposited
in the Custodial Account by the
Company on the date such late payment
is made and shall cover the period
commencing with the Business Day on
which such payment was due and
ending with the Business Day on which
such payment is made, both
inclusive. Such interest shall be remitted
along with the distribution
payable on the next succeeding Remittance
Date. Payments by the Company
of any such interest shall not be deemed
an extension of time for
payment or a waiver of any Event of Default
by the Company."
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(i) Section 5.02 of the
Wells Fargo Servicing Agreement is
modified by deleting such section in
its entirety and replacing it with the
following:
"On or before the
tenth calendar day of each month (or if such
day is not a Business Day, the
immediately preceding Business Day),
the Company shall furnish to
the Master Servicer a delinquency report
in the form set forth in
Exhibit J-1, a monthly remittance advice in
the form set forth in Exhibit
J-2, and a realized loss report in the
form set forth in Exhibit J-3,
each in a mutually agreeable electronic
format, as to the latest Due
Period, together with such other
information with respect to the
Mortgage Loans as the Master Servicer
may reasonably require to
allocate distributions made pursuant to this
Agreement and to provide
appropriate statements in connection
therewith."
(j) Section 6.04 of the Wells
Fargo Servicing Agreement is
modified by replacing the phrase
"the Purchaser, any Master Servicer and
any Depositor" with "the
Master Servicer".
(k) Section 6.04 of the
Wells Fargo Servicing Agreement is
further modified by replacing the
phrase "the Purchaser, such Master
Servicer and such Depositor"
with "the Master Servicer".
(l) Section 6.06 of the
Wells Fargo Servicing Agreement is
modified by replacing the phrase
"the Purchaser, any Master Servicer and
any Depositor" with "the
Master Servicer".
(m) Section 6.06 of the
Wells Fargo Servicing Agreement is
further modified by replacing the
phrase "the Purchaser, such Master
Servicer and such Depositor"
with "the Master Servicer".
(n) Section 6.06 of the
Wells Fargo Servicing Agreement is
further modified by replacing the
phrase "the Purchaser and such Depositor"
with "the Master
Servicer".
(o) Section 9.01(e) of the
Wells Fargo Servicing Agreement is
modified by replacing the phrase
"subsection (d)" with "subsection (e)" in
each instance.
(p) Section 9.01(e)(iv) of
the Wells Fargo Servicing Agreement is
modified by replacing the phrase
"If so requested by the Purchaser or any
Depositor for" with
"For".
(q) Section 9.01(f)(i) of
the Wells Fargo Servicing Agreement is
modified by replacing the phrase
"Sections 4.24" with "Sections 4.26".
(r) Section 9.01(f)(ii) of
the Wells Fargo Servicing Agreement is
modified by replacing the phrase
"any breach by the Company of its
obligations under this Section
9.01(e)" with "any breach by the Company of
its obligations under Sections 4.26,
6.04, 6.06 and 9.01(e)".
(s) Section 9.01(f)(iv) of
the Wells Fargo Servicing Agreement is
modified by replacing the phrase
"performance under this Section 9.01(e)"
with "performance under
Sections 4.26, 6.04, 6.06 and 9.01(e)".






