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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 r
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