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EXHIBIT 99.3
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement
(this
"FRB AAR Agreement") made as of April 1, 2006, by and among Merrill
Lynch
Mortgage Lending, Inc., having an address at 4 World Financial
Center, New York,
New York 10080, as assignor (the "Assignor"), Merrill Lynch
Mortgage Investors,
Inc., having an address at 4 World Financial Center, 10th Floor,
New York, New
York 10080, as assignee (the "Assignee"), and First Republic Bank,
having an
address at One Eleven Pine Street, San Francisco, California 94111,
as servicer
(the "Servicer"), and acknowledged and agreed to by Wells Fargo
Bank, N.A., as
master servicer (the "Master Servicer").
WHEREAS, Merrill Lynch Bank, USA ("MLBUSA") acquired the
mortgage
loans set forth on Attachment 1 annexed hereto (the "Assigned
Loans") from the
Servicer, and the Servicer agreed to service the Mortgage Loans,
pursuant to
that certain Mortgage Loan Purchase and Servicing Agreement, dated
as of
December 1, 2005, by and between MLBUSA and the Servicer (the
"Purchase and
Servicing Agreement");
WHEREAS, MLBUSA assigned all of its right, title, interest and
obligations in, to and under the Purchase and Servicing Agreement
to Assignor
pursuant to the Assignment, Assumption and Recognition Agreement,
dated April 1,
2006, by and among MLBUSA, the Servicer and the Assignor (the
"MLBUSA AAR
Agreement") (except for obligations that arise prior to the date
hereof which
were retained by MLBUSA);
WHEREAS, the Servicer is currently servicing the Assigned Loans
for
the benefit of the Assignor in accordance with the terms and
conditions of the
Purchase and Servicing Agreement;
In consideration of the mutual promises contained herein the
parties
hereto agree that the Assigned Loans shall be subject to the terms
of this FRB
AAR Agreement. Capitalized terms used herein but not defined shall
have the
meanings ascribed to them in the Purchase and Servicing
Agreement.
Assignment and Assumption
1.
Assignor hereby grants, transfers and assigns to Assignee all of
the
right, title, interest and obligations of Assignor in the Assigned
Loans and, as
they relate to the Assigned Loans, all of its right, title,
interest and
obligations in, to and under the MLBUSA AAR Agreement (except for
those
obligations that are retained by the Assignor as set forth in the
MLBUSA AAR
Agreement). Assignor specifically reserves and does not assign to
Assignee any
right, title and interest in, to or under any Mortgage Loans
subject to the
MLBUSA AAR Agreement and the Purchase and Servicing Agreement other
than those
set forth on Attachment 1.
Representations; Warranties and Covenants
2.
Assignor warrants and represents to Assignee and Servicer as of
the
date hereof:
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a. Attached hereto as Attachment 2 are true and accurate copies
of
the MLBUSA AAR Agreement and the Purchase and Servicing Agreement,
which
agreements are in full force and effect as of the date hereof and
the provisions
of which have not been waived, amended or modified in any respect,
nor has any
notice of termination been given thereunder;
b. Assignor was the lawful owner of the Assigned Loans with
full
right to transfer the Assigned Loans and any and all of its
interests, rights
and obligations under the MLBUSA AAR Agreement as they relate to
the Assigned
Loans, free and clear of any and all liens, claims and
encumbrances; and upon
the transfer of the Assigned Loans to Assignee as contemplated
herein, Assignee
shall have good title to each and every Assigned Loan, as well as
any and all of
Assignor's interests, rights and obligations under the MLBUSA AAR
Agreement as
they relate to the Assigned Loans, free and clear of any and all
liens, claims
and encumbrances;
c. Assignor has not received notice of, and has no knowledge of,
any
offsets, counterclaims or other defenses available to Servicer with
respect to
the Assigned Loans or the MLBUSA AAR Agreement or the Purchase and
Servicing
Agreement;
d. Assignor has not waived or agreed to any waiver under, or
agreed
to any amendment or other modifications of, the MLBUSA AAR
Agreement or the
Purchase and Servicing Agreement. Assignor has no knowledge of, and
has not
received notice of, any waivers under or any amendments or other
modifications
of, or assignment of rights or obligations under the MLBUSA AAR
Agreement or the
Purchase and Servicing Agreement;
e. Assignor is a corporation duly organized, validly existing and
in
good standing under the laws of the jurisdiction of its formation,
and has all
requisite power and authority to acquire, own and sell the Assigned
Loans;
f. Assignor has full power and authority to execute, deliver
and
perform its obligations under this FRB AAR Agreement, and to
consummate the
transactions set forth herein. The consummation of the transactions
contemplated
by this FRB AAR Agreement is in the ordinary course of Assignor's
business and
will not conflict with, or result in a breach of, any of the terms,
conditions
or provisions of Assignor's charter or by-laws or any legal
restriction, or any
material agreement or instrument to which Assignor 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 Assignor or its property is subject.
The execution,
delivery and performance by Assignor of this FRB AAR Agreement and
the
consummation by it of the transactions contemplated hereby, have
been duly
authorized by all necessary action on the part of Assignor. This
FRB AAR
Agreement has been duly executed and delivered by Assignor and,
upon the due
authorization, execution and delivery by Assignee and Servicer,
will constitute
the valid and legally binding obligation of Assignor enforceable
against
Assignor in accordance with its terms except as enforceability may
be limited by
bankruptcy, reorganization, insolvency, moratorium or other similar
laws now or
hereafter in effect relating to creditors' rights generally, and by
general
principles of equity regardless of whether enforceability is
considered in a
proceeding in equity or at law;
g. No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity
is required to
be obtained or made by
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Assignor in connection with the execution, delivery or performance
by Assignor
of this FRB AAR Agreement, or the consummation by it of the
transactions
contemplated hereby. Neither Assignor nor anyone acting on its
behalf has
offered, transferred, pledged, sold or otherwise disposed of the
Assigned Loans
or any interest in the Assigned Loans, or solicited any offer to
buy or accept
transfer, pledge or other disposition of the Assigned Loans, or any
interest in
the Assigned Loans, or otherwise approached or negotiated with
respect to the
Assigned Loans, or any interest in the Assigned Loans, with any
Person in any
manner, or made any general solicitation by means of general
advertising or in
any other manner, or taken any other action which would constitute
a
distribution of the Assigned Loans under the Securities Act of
1933, as amended
(the "1993 Act") or which would render the disposition of the
Assigned Loans a
violation of Section 5 of the 1933 Act or require registration
pursuant thereto;
and
h. Assignor has received from Servicer, and has delivered to
the
Custodian, on behalf of the Assignee, all documents required to be
delivered to
Assignor by Servicer prior to the date hereof pursuant to Section
6.03 of the
Purchase and Servicing Agreement with respect to the Assigned
Loans.
3.
Assignee warrants and represents to, and covenants with, Assignor
and
Servicer as of the date hereof:
a. Assignee is a corporation duly organized, validly existing and
in
good standing under the laws of the jurisdiction of its formation
and has all
requisite power and authority to acquire, own and purchase the
Assigned Loans;
b. Assignee has full power and authority to execute, deliver
and
perform its obligations under this FRB AAR Agreement, and to
consummate the
transactions set forth herein. The consummation of the transactions
contemplated
by this FRB AAR Agreement is in the ordinary course of Assignee's
business and
will not conflict with, or result in a breach of, any of the terms,
conditions
or provisions of Assignee's charter or by-laws or any legal
restriction, or any
material agreement or instrument to which Assignee 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 Assignee or its property is subject.
The execution,
delivery and performance by Assignee of this FRB AAR Agreement and
the
consummation by it of the transactions contemplated hereby, have
been duly
authorized by all necessary action on the part of Assignee. This
FRB AAR
Agreement has been duly executed and delivered by Assignee and,
upon the due
authorization, execution and delivery by Assignor and Servicer,
will constitute
the valid and legally binding obligation of Assignee enforceable
against
Assignee in accordance with its terms except as enforceability may
be limited by
bankruptcy, reorganization, insolvency, moratorium or other similar
laws now or
hereafter in effect relating to creditors' rights generally, and by
general
principles of equity regardless of whether enforceability is
considered in a
proceeding in equity or at law;
c. No material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity
is required to
be obtained or made by Assignee in connection with the execution,
delivery or
performance by Assignee of this FRB AAR Agreement, or the
consummation by it of
the transactions contemplated hereby;
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d. There is no action, suit, proceeding, investigation or
litigation
pending or, to Assignee's knowledge, threatened, which either in
any instance or
in the aggregate, if determined adversely to Assignee, would
adversely affect
Assignee's execution or delivery of, or the enforceability of, this
FRB AAR
Agreement, or the Assignee's ability to perform its obligations
under this FRB
AAR Agreement;
e. The Assignee agrees to be bound, as purchaser, by all of the
terms, covenants, and conditions of the Purchase Agreement,
including but not
limited to Section 15 (Termination) and Section 28
(Nonsolicitation) with
respect to the Assigned Loans, and from and after the date hereof,
the Assignee
assumes, for the benefit of each of the Servicer and the Assignor,
all of the
Assignor's obligations, as purchaser, thereunder, with respect to
the Assigned
Loans.
f. Assignee understands that the Assigned Loans have not been
registered under the Securities Act of 1934 (the "Securities Act")
or the
securities laws of any state; and
g. Assignee is either (i) not an employee benefit plan that is
subject to the Employee Retirement Income Security Act of 1974, as
amended
("ERISA"), or Section 4975 of the Internal Revenue Code of 1986
(the "Code")(a
"Plan") and not a Person acting, directly or indirectly, on behalf
of or
investing with "plan assets" of any such Plan or (ii) an employee
benefit plan
that is subject to ERISA and the assignment contemplated herein
does not
constitute and will not result in non-exempt prohibited transaction
under
Section 406 of ERISA or Section 4975 of the Code.
4. The
Servicer hereby restates, as of the date hereof, the
representations and warranties contained in Section 7.01 (except
with respect to
Section 7.01(xiii), (xv), and (xvi)) and Section 7.02 (modified to
the extent
necessary to accurately reflect the pool characteristics of the
Mortgage Loans
as of the date hereof and any events or circumstances existing
subsequent to the
related Closing Date) of the Purchase and Servicing Agreement, to
and for the
benefit of the Assignee, and by this reference incorporates such
representations
and warranties herein, as of the date hereof.
Recognition of Assignee
5. (a)
From and after the date hereof, the Servicer shall recognize
the
Assignee as the owner of the Assigned Loans, and the Servicer will
service the
Assigned Loans in accordance with the servicing provisions
contained in the
Purchase and Servicing Agreement, as modified by this FRB AAR
Agreement, for the
benefit of the Assignee, and shall look solely to the Assignee for
performance
of the obligations of Purchaser under the Purchase and Servicing
Agreement with
respect to the Assigned Loans. The Assignee hereby acknowledges and
agrees that
it shall uphold, or shall require its agents to uphold, the
obligations of the
Purchaser contained in the Purchase and Servicing Agreement.
(b) The Servicer acknowledges that Wells Fargo Bank, N.A. (the
"Master
Servicer" and "Securities Administrator") has been appointed as the
master
servicer of the Assigned Loans pursuant to the Pooling and
Servicing Agreement,
dated as of April 1, 2006, by and among the Assignee, the Master
Servicer, the
Securities Administrator, HSBC Bank USA,
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National Association, as trustee (the "Trustee"), and PHH Mortgage
Corporation,
as a servicer (the "Pooling and Servicing Agreement").
The
Servicer shall provide monthly reports to the Master Servicer
as
required under the Purchase and Servicing Agreement, which reports
shall contain
the data specified in the forms attached as Attachment 3 hereto as
is mutually
agreed by the Master Servicer and the Servicer and may be in such
format as is
mutually agreed by the Master Servicer and the Servicer.
The Servicer shall deliver, with respect to the Assigned Loans,
all
reports required to be delivered under the Purchase and Servicing
Agreement to:
Wells Fargo Bank, N.A.
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Merrill Lynch Mortgage Investors Trust, Series MLCC
2006-2
(c) The Servicer hereby acknowledges that the Master Servicer
has
the right to enforce all obligations of the Servicer under the
Purchase and
Servicing Agreement, with respect to the Assigned Loans, acting on
behalf of the
Assignee, as owner of the Assigned Loans. Such rights will include,
without
limitation, the right to terminate the Servicer, with respect to
the Assigned
Loans, under the Purchase and Servicing Agreement upon the
occurrence of an
event of default thereunder, the right to receive all remittances
required to be
made by the Servicer, with respect to the Assigned Loans, under the
Purchase and
Servicing Agreement, the right to receive all monthly reports and
other data
required to be delivered by the Servicer, with respect to the
Assigned Loans,
under the Purchase and Servicing Agreement, the right to examine
the books and
records of the Servicer, with respect to the Assigned Loans, and
the right to
exercise certain rights of consent and approval of the "Purchaser,"
with respect
to the Assigned Loans, under the Purchase and Servicing
Agreement.
Notwithstanding the foregoing, it is understood that the Servicer
shall not be
obligated to defend and indemnify and hold harmless the Master
Servicer, the
Assignee and the Assignor from and against any losses, damages,
penalties,
fines, forfeitures, judgments and any related costs including,
without
limitation, reasonable and necessary legal fees, resulting from (i)
actions or
inactions of the Servicer, with respect to the Assigned Loans,
which were taken
or omitted upon the instruction or direction of the Master Servicer
or (ii) the
failure of the Master Servicer to perform the obligations of the
"Purchaser,"
with respect to the Assigned Loans, under the Purchase and
Servicing Agreement
and this FRB AAR Agreement only to the extent that the Master
Servicer has any
obligations of the "Purchaser". In addition, the Assignee shall
indemnify the
Servicer, with respect to the Assigned Loans, and hold it harmless
against any
and all claims, losses, damages, penalties, fines, forfeitures,
reasonable and
necessary legal fees and related costs, judgments, and any other
costs, fees and
expenses that the Servicer may sustain in any way related to (a)
actions or
inactions of the Servicer, with respect to the Assigned Loans,
which were taken
or omitted upon the instruction or direction of the Trustee or
Master Servicer,
as applicable, or (b) the failure of the Trustee or the Master
Servicer, as
applicable, to perform the obligations of the "Purchaser," with
respect to the
Assigned Loans, under the Purchase and Servicing Agreement and this
FRB AAR
Agreement. The Servicer shall, with respect to the Assigned Loans,
make all
distributions
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under the Purchase and Servicing Agreement to the Master Servicer
by wire
transfer of immediately available funds to:
Wells Fargo Bank, N.A.
ABA Number: #121 000 248
Account Name: Corporate Trust Clearing
Account number: 3970771416
For further credit to:
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Distribution Account Number: 50913100
(d) For purposes of Section 11.13 and Section 11.29 of the
Purchase
and Servicing Agreement, the Servicer is hereby notified, and the
Servicer
hereby acknowledges receipt of such notification, that a REMIC
election has been
made with respect to the Assigned Loans.
Modification of the Purchase and Servicing Agreement
6. The
Assignee and the Servicer hereby amend the definition of
"Company
Information" in Section 1 of the Purchase and Servicing Agreement
be deleting
the word "Company" and replacing it with the word "Seller".
7. The
Assignee and the Servicer hereby amend Section 1 of the
Purchase
and Servicing Agreement, as it pertains to the Assigned Loans,
by:
(a) 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 Federal Reserve is closed, or (iii) a day on
which banking
institutions in the jurisdiction in which the Master Servicer or
the Servicer
are authorized or obligated by law or executive order to be
closed."
(b) deleting the definition of "Master Servicer" in its entirety
and
replacing it with the following:
"Master Servicer: Wells Fargo Bank, N.A., or its successors in
interest."
and
(c) adding the following definitions in alphabetical order:
"Assignment and Assumption Agreement: The assignment and
assumption
agreement, , dated as of April 1, 2006, among Merrill Lynch
Mortgage Lending,
Inc., Merrill Lynch Mortgage Investors, Inc., and First Republic
Bank, as the
servicer."
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"Exchange Act: The Securities Exchange Act of 1934, as
amended."
"Subservicer: Any Person that services Mortgage Loans on behalf
of
the Servicer, and is responsible for the performance (whether
directly or
through sub-servicers or Subcontractors) of a substantial portion
of material
servicing functions required to be performed by the Servicer under
this
Agreement or any Reconstitution Agreement that are identified in
Item 1122(d) of
Regulation AB."
"Trustee: The party named as trustee in any agreement pursuant to
a
Securitization Transaction."
8. The
Assignee and the Servicer hereby amend Exhibit 7 of the
Purchase
and Servicing Agreement by replacing the phrase "First Republic
Bank in trust
for the Purchaser and various Mortgagors, Fixed and Adjustable Rate
Mortgage
Loans" with "First Republic Bank in trust for Wells Fargo Bank,
N.A., as master
servicer on behalf of the Merrill Lynch Mortgage Investors Trust,
Series MLCC
2006-2."
9. The
Assignee and the Servicer hereby amend Exhibit 8 of the
Purchase
and Servicing Agreement by replacing the phrase "First Republic
Bank in trust
for the Purchaser and various Mortgagors, Fixed and Adjustable Rate
Mortgage
Loans" with "First Republic Bank in trust for Wells Fargo Bank,
N.A., as master
servicer on behalf of the Merrill Lynch Mortgage Investors Trust,
Series MLCC
2006-2."
10. The
Assignee and the Servicer hereby amend Section 11.13 of the
Servicing Addendum to the Purchase and Servicing Agreement,
attached to the
Purchase and Servicing Agreement as Exhibit 9 (the "Servicing
Addendum"), by
deleting the reference in the last sentence of the second paragraph
to "two
years" and replacing it with "three years."
11. The
Assignee and the Servicer hereby amend Section 11.15 of the
Servicing Addendum by deleting the last sentence thereof and adding
the
following sentence at the end thereof:
"In
addition, no later than the tenth (10th) calendar day of each
month
(or if
such tenth day is not a Business Day, the Business Day
immediately
preceding
such tenth day), the Servicer shall furnish to the Purchase
