ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENTAssumption Agreement |
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<PAGE>
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:
12579707.6.BUSINESS
<PAGE>
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
MLCC 2006-2
FRB AAR
12579707.2
12579707.6.BUSINESS
<PAGE>
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;
MLCC 2006-2
FRB AAR
12579707.2
12579707.6.BUSINESS
<PAGE>
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,
MLCC 2006-2
FRB AAR
12579707.2
12579707.6.BUSINESS
<PAGE>
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
MLCC 2006-2
FRB AAR
12579707.2
12579707.6.BUSINESS
<PAGE>
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: MLCC 2006-2
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."
MLCC 2006-2
FRB AAR
12579707.2
12579707.6.BUSINESS
<PAGE>
"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 Purchaser and
the Master Servicer a report
containing the data set forth in Attachment
3-A, Attachment 3-B and Attachment
3-C to the Assignment, Assumption and
Recognition Agreement, with respect
to monthly remittance advice,
defaulted Mortgage Loans and
Realized Loss Calculations, respectively, in
such format as is mutually agreed
by the Master Servicer and the
Servicer."
12. The Assignee and the Servicer hereby amend Section 11.18 of the
Servicing Addendum by deleting such section in its entirety and replacing it
with the following:
"Upon the foreclosure
sale of any Mortgaged Property or the
acquisition thereof by the
Purchaser pursuant to a deed-in-lieu of
foreclosure, the Servicer shall
submit to the Purchaser and the Master
Servicer a liquidation report in
the format mutually agreed upon by the
Servicer and the Master Servicer, with
respect to such Mortgaged Property
MLCC 2006-2
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12579707.6.BUSINESS
<PAGE>
and all supporting documentation
which is readily available and reasonably
requested by the Master
Servicer."
13. The Assignee and the Servicer
hereby amend Sections 11.24 and 11.25 of
the Servicing Addendum by deleting each such section in its entirety and
replacing each such section with "[Reserved]."
14. The Assignee and the Servicer
hereby amend Section 11.29 of the
Servicing Addendum by deleting such section in its entirety and replacing it
with the following:
"Notwithstanding
anything in this Agreement to the contrary, the
Servicer (a) shall not permit any
modification with respect to any
Mortgage Loan that would change the
Mortgage Interest Rate and (b) shall
not (unless the Mortgagor is in
default with respect to the Mortgage Loan
or such default is, in the judgment
of the Servicer, reasonably
foreseeable) make or permit any
modification, waiver or amendment of any
term of any Mortgage Loan that
would cause any trust fund created pursuant
to a Securitization Transaction to
fail to qualify as a REMIC under the
Code or the imposition of any tax
on "prohibited transactions" or
"contributions" after the
startup date under the REMIC Provisions unless
the Servicer has received an
Opinion of Counsel (at the expense of the
party seeking to take such action)
to the effect that the contemplated
action will not endanger such REMIC
status or result in the imposition of
any such tax.
15. The Assignee and the Servicer
hereby amend Section 12A.03 of the
Purchase and Servicing Agreement by replacing the phrase "(a), (b), (c)
and (g)"
with the phrase "(a), (b), (c), (f) and (g)" in the first paragraph.
16. The Assignee and the Servicer
hereby amend Section 12A.03(e) of the
Purchase and Servicing Agreement by adding the phrase ", any Master
Servicer"
between the words "Purchaser" and "and any Depositor" in
clause (ii).
17. The Assignee and the Servicer
hereby amend Section 12A.03(g) of the
Purchase and Servicing Agreement by adding the phrase ", copies or other
evidence of Fidelity Bond Insurance and Errors and Omission Insurance
policy,"
between the phrases "certification or statement," and "financial
information and
reports."
18. The Assignee and the Servicer
hereby amend Section 12A.04 of the
Purchase and Servicing Agreement by adding the phrase "in a form
substantially
similar to that which is attached to the Assignment and Assumption Agreement as
Attachment 4," directly prior to the phrase "to the effect that
(i)."
19. The Assignee and the Servicer
hereby amend Section 12A.05(a)(i) of the
Purchase and Servicing Agreement by adding the phrase "(a form of which is
attached to the Assignment and Assumption Agreement as Attachment 5)"
directly
after the phrase "Such report" in the last sentence.
20. The Assignee and the Servicer
hereby amend Section 12A.05(a)(ii) of
the Purchase and Servicing Agreement by adding the following phrase to the end
of the first sentence:
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12579707.6.BUSINESS
<PAGE>
", to the effect that
(i) it has obtained a representation regarding
certain matters from the management
of such party, which includes an
assertion that such party has
complied with the applicable Servicing
Criteria, and (ii) on the basis of
an examination conducted by such firm
in accordance with standards for
attestation engagements issued or adopted
by the Public Company Accounting
Oversight Board, it is expressing an
opinion as to whether such party's
compliance with the applicable
Servicing Criteria was fairly
stated in all material respects, or it
cannot express an overall opinion
regarding such party's assessment of
compliance with the applicable
Servicing Criteria. In the event that an
overall opinion cannot be
expressed, such registered public accounting
firm shall state in such report why
it was unable to express such an
opinion. Such report must be
available for general use and not contain
restricted use language."
21. The Assignee and the Servicer
hereby amend Section 12A.05(a)(iv) of
the Purchase and Servicing Agreement by:
(a) deleting the phrase
"If requested by the Purchaser or any
Depositor not later than February 1 of the calendar year in which such
certification is to be delivered, deliver" and replacing it with the
phrase
"deliver, and cause each Subservicer and Subcontractor described in clause
(iii)
to deliver,"
and
(b) adding the phrase ",
any Master Servicer" between the words
"Depositor" and "and any other Person."
22. The Assignee and the Servicer
hereby amend Section 12A.06(b) of the
Purchase and Servicing Agreement by:
(a) adding the phrase
"and the other certifications" between the
words "attestation" and "required" in the last sentence of
the last paragraph.
and
(b) adding the phrase
"and such Subservicer" between the phrases "by
such Subcontractor" and "under Section 12A.05."
23. The Assignee and the Servicer
hereby amend Section 12A.07(b)(ii) in
the Purchase and Servicing Agreement by deleting the first paragraph in its
entirety and replacing it with the following:






