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 Xxxxxxx Xxxxx
Mortgage Lending, Inc., having an address at 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, as assignor (the "Assignor"), Xxxxxxx Xxxxx Mortgage Investors,
Inc., having an address at 4 World Financial Center, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, as assignee (the "Assignee"), and First Republic Bank, having an
address at Xxx Xxxxxx Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, as servicer
(the "Servicer"), and acknowledged and agreed to by Xxxxx Fargo Bank, N.A., as
master servicer (the "Master Servicer").
WHEREAS, Xxxxxxx Xxxxx 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:
00000000.0.XXXXXXXX
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 Xxxxx 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:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxx 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:
Xxxxx Fargo Bank, N.A.
ABA Number: #121 000 248
Account Name: Corporate Trust Clearing
Account number: 0000000000
For further credit to: MLCC 2006-2
Distribution Account Number: 00000000
(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: Xxxxx 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 Xxxxxxx Xxxxx Mortgage Lending,
Inc., Xxxxxxx Xxxxx 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 Xxxxx Fargo Bank, N.A., as master
servicer on behalf of the Xxxxxxx Xxxxx 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 Xxxxx Fargo Bank, N.A., as master
servicer on behalf of the Xxxxxxx Xxxxx 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
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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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", 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:
"(ii) (A) Any failure by the Seller, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Subsections 12A.04 or
12A.05, including (except as provided below) any failure by the Seller to
identify pursuant to Subsection 12A.06(b) any Subcontractor "participating
in the servicing function" within the meaning of Item 1122 of Regulation
AB, which continues unremedied for ten (10) calendar days after the date
on which the Seller received written notification from the Depositor or
the Master Servicer of failure to deliver such information, report,
certification or accountants' letter shall constitute an
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Event of Default with respect to the Seller under this Agreement and any
applicable Reconstitution Agreement, and shall entitle the Purchaser, any
Master Servicer or any Depositor, as applicable, in its sole discretion to
terminate the rights and obligations of the Seller as servicer under this
Agreement and/or any applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement to the contrary) of any
compensation to the Seller; provided that to the extent that any provision
of this Agreement and/or any applicable Reconstitution Agreement expressly
provides for the survival of certain rights or obligations following
termination of the Seller as servicer, such provision shall be given
effect. (B) Any failure by the Seller, any Subservicer or any
Subcontractor to deliver any information, report, certification or
accountants' letter when and as required under Subsections 12A.02,
12A.03(a), (b) and (c), and 12A.06 which continues unremedied for two (2)
calendar days after the date on which such information, report,
certification or accountants' letter was required to be delivered shall
constitute an Event of Default with respect to the Seller under this
Agreement and any applicable Reconstitution Agreement, and shall entitle
the Purchaser, any Master Servicer or any Depositor, as applicable, in its
sole discretion to terminate the rights and obligations of the Seller as
servicer under this Agreement and/or any applicable Reconstitution
Agreement without payment (notwithstanding anything in this Agreement to
the contrary) of any compensation to the Seller; provided that to the
extent that any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of certain
rights or obligations following termination of the Seller as servicer,
such provision shall be given effect. The Seller shall indemnify the
Master Servicer under this Subsection 12A.07(b)(ii)(B) and shall hold the
Master Servicer harmless from and against any and all claims, losses,
damages, penalties, fines, forfeitures, legal fees and expenses and
related costs, judgments, and any other costs, fees and expenses that the
Master Servicer may sustain arising out of or based upon any failure by
the Seller, any Subservicer or any Subcontractor to deliver any
information, report, certification or accountants' letter when and as
required under Subsections 12A.02, 12A.03(a), (b) and (c) and 12A.06 of
this Agreement which continues unremedied for two (2) calendar days after
the date on which such information, report, certification or accountants'
letter was required to be delivered."
24. The Assignee and the Servicer hereby amend Section 14.01(ix) in the
Purchase and Servicing Agreement by deleting it in its entirety and replacing it
with the following:
"the Seller fails to duly perform, within the required time period
(including the applicable cure period provided in Section 12A.07(b)(ii)), its
obligations under Sections 12A.04, 12A.05 or 12.A06."
25. The Assignee and the Servicer hereby amend Exhibit 11 of the Purchase
and Servicing Agreement by adding the phrase "and all servicing reports,
officer's certificates and other information relating to the servicing of the
Mortgage Loans by the Seller during 200[_]" after the phrase "(the "Attestation
Report")," in paragraph (1).
26. The Assignee and the Servicer hereby amend Exhibit 12 of the Purchase
and Servicing Agreement by checking as "Applicable Servicing Criteria" the
criteria referenced on such Exhibit as Sections 1122(d)(4)(i), (ii) and (iii),
and by unchecking the criteria referenced on
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such Exhibit as Section 1122(d)(4)(xv). For the purposes of the criteria listed
under "Investor Remittances and Reporting," "Investor" shall refer to the
"Master Servicer."
Miscellaneous
27. All demands, notices and communications under the MLBUSA AAR
Agreement, the Purchase and Servicing Agreement and this FRB AAR Agreement with
respect to the Assigned Loans shall be in writing and shall be deemed to have
been duly given if personally delivered or mailed by registered mail, postage
prepaid, as follows:
a. In the case of Servicer,
First Republic Bank
Xxx Xxxxxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
b. In the case of Assignor,
Xxxxxxx Xxxxx Mortgage Lending, Inc.
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLCC 2006-2
c. In the case of Assignee,
Xxxxxxx Xxxxx Mortgage Investors, Inc.
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: MLCC 2006-2
28. This FRB AAR Agreement shall be construed in accordance with the laws
of the State of New York, without regard to conflicts of law principles, and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
29. No term or provision of this FRB AAR Agreement may be waived or
modified unless such waiver or modification is in writing and signed by the
party against whom such waiver or modification is sought to be enforced.
30. This FRB AAR Agreement shall inure to the benefit of the successors
and assigns of the parties hereto. Any entity into which Assignor, Assignee,
Servicer or Servicer may be merged or consolidated shall without the requirement
for any further writing, be deemed Assignor, Assignee or Servicer, respectively
hereunder.
31. This FRB AAR Agreement shall survive the conveyance of the Assigned
Loans as contemplated in this FRB AAR Agreement.
MLCC 2006-2
FRB AAR
12579707.2
00000000.0.XXXXXXXX
32. This FRB AAR Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and all such
counterparts shall constitute one and the same instrument.
33. In the event that any provision of this FRB AAR Agreement conflicts
with any provision of the MLBUSA AAR Agreement or the Purchase and Servicing
Agreement with respect to the Assigned Loans, the terms of this FRB AAR
Agreement shall control.
MLCC 2006-2
FRB AAR
12579707.2
00000000.0.XXXXXXXX
IN WITNESS WHEREOF, the parties hereto have executed this FRB AAR
Agreement as of the day and year first above written.
XXXXXXX XXXXX MORTGAGE LENDING, INC.
Assignor
By:______________________________
Name:____________________________
Title:___________________________
XXXXXXX XXXXX MORTGAGE INVESTORS, INC.
Assignee
By:______________________________
Name:____________________________
Title:___________________________
FIRST REPUBLIC BANK
Servicer
By:______________________________
Name:____________________________
Title:___________________________
ACKNOWLEDGED AND AGREED:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
Master Servicer
By:______________________________
Name:____________________________
Title:___________________________
00000000.0.XXXXXXXX
ATTACHMENT 1
ASSIGNED MORTGAGE LOAN SCHEDULE
00000000.0.XXXXXXXX
ATTACHMENT 2
MASTER MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
MLCC 2006-2
FRB AAR
12579707.2
00000000.0.XXXXXXXX
ATTACHMENT 3
ATTACHMENT 3-A
MONTHLY REMITTANCE ADVICE
COLUMN NAME DESCRIPTION DECIMAL FORMAT COMMENT MAX SIZE
----------- ----------- ------- -------------- --------
SER_INVESTOR_NBR A value assigned by the Servicer Text up to 10 digits 20
to define a group of loans.
LOAN_NBR A unique identifier assigned to Text up to 10 digits 10
each loan by the investor.
SERVICER_LOAN_NBR A unique number assigned to a loan Text up to 10 digits 10
by the Servicer. This may be
different than the LOAN_NBR.
BORROWER_NAME The borrower name as received in Maximum length of 30 (Last, First) 30
the file. It is not separated by
first and last name.
SCHED_PAY_AMT Scheduled monthly principal and 2 No commas(,) or dollar signs ($) 11
scheduled interest payment that a
borrower is expected to pay, P&I
constant.
NOTE_INT_RATE The loan interest rate as reported 4 Max length of 6 6
by the Servicer.
NET_INT_RATE The loan gross interest rate less 4 Max length of 6 6
the service fee rate as reported
by the Servicer.
SERV_FEE_RATE The servicer's fee rate for a loan 4 Max length of 6 6
as reported by the Servicer.
SERV_FEE_AMT The servicer's fee amount for a 2 No commas(,) or dollar signs ($) 11
loan as reported by the Servicer.
NEW_PAY_AMT The new loan payment amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
NEW_LOAN_RATE The new loan rate as reported by 4 Max length of 6 6
the Servicer.
ARM_INDEX_RATE The index the Servicer is using to 4 Max length of 6 6
calculate a forecasted rate.
ACTL_BEG_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar signs ($) 11
balance at the beginning of the
processing cycle.
ACTL_END_PRIN_BAL The borrower's actual principal 2 No commas(,) or dollar signs ($) 11
balance at the end of the
processing cycle.
BORR_NEXT_PAY_DUE_DATE The date at the end of processing MM/DD/YYYY 10
cycle that the borrower's next
payment is due to the Servicer, as
reported by Servicer.
SERV_CURT_AMT_1 The first curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_1 The curtailment date associated MM/DD/YYYY 10
with the first curtailment amount.
CURT_ADJ_ AMT_1 The curtailment interest on the 2 No commas(,) or dollar signs ($) 11
first curtailment amount, if
applicable.
SERV_CURT_AMT_2 The second curtailment amount to 2 No commas(,) or dollar signs ($) 11
be applied.
SERV_CURT_DATE_2 The curtailment date associated MM/DD/YYYY 10
with the second curtailment amount.
CURT_ADJ_ AMT_2 The curtailment interest on the 2 No commas(,) or dollar signs ($) 11
second curtailment amount, if
applicable.
SERV_CURT_AMT_3 The third curtailment amount to be 2 No commas(,) or dollar signs ($) 11
applied.
SERV_CURT_DATE_3 The curtailment date associated MM/DD/YYYY 10
with the third curtailment amount.
CURT_ADJ_AMT_3 The curtailment interest on the 2 No commas(,) or dollar signs ($) 11
third curtailment amount, if
applicable.
MLCC 2006-2
FRB AAR
12579707.2
00000000.0.XXXXXXXX
PIF_AMT The loan "paid in full" amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer.
PIF_DATE The paid in full date as reported MM/DD/YYYY 10
by the Servicer.
Action Code Key: 15=Bankruptcy, 2
00xXxxxxxxxxxx, , 00xXXX,
63=Substitution,
65=Repurchase,70=REO
ACTION_CODE The standard FNMA numeric code used
to indicate the default/delinquent
status of a particular loan.
INT_ADJ_AMT The amount of the interest 2 No commas(,) or dollar signs ($) 11
adjustment as reported by the
Servicer.
SOLDIER_SAILOR_ADJ_AMT The Soldier and Sailor Adjustment 2 No commas(,) or dollar signs ($) 11
amount, if applicable.
NON_ADV_LOAN_AMT The Non Recoverable Loan Amount, 2 No commas(,) or dollar signs ($) 11
if applicable.
LOAN_LOSS_AMT The amount the Servicer is passing 2 No commas(,) or dollar signs ($) 11
as a loss, if applicable.
SCHED_BEG_PRIN_BAL The scheduled outstanding 2 No commas(,) or dollar signs ($) 11
principal amount due at the
beginning of the cycle date to be
passed through to investors.
SCHED_END_PRIN_BAL The scheduled principal balance 2 No commas(,) or dollar signs ($) 11
due to investors at the end of a
processing cycle.
SCHED_PRIN_AMT The scheduled principal amount as 2 No commas(,) or dollar signs ($) 11
reported by the Servicer for the
current cycle -- only applicable
for Scheduled/Scheduled Loans.
SCHED_NET_INT The scheduled gross interest 2 No commas(,) or dollar signs ($) 11
amount less the service fee amount
for the current cycle as reported by
the Servicer -- only applicable for
Scheduled/Scheduled Loans.
ACTL_PRIN_AMT The actual principal amount 2 No commas(,) or dollar signs ($) 11
collected by the Servicer for the
current reporting cycle -- only
applicable for Actual/Actual Loans.
ACTL_NET_INT The actual gross interest amount 2 No commas(,) or dollar signs ($) 11
less the service fee amount for the
current reporting cycle as reported
by the Servicer -- only applicable
for Actual/Actual Loans.
PREPAY_PENALTY_ AMT The penalty amount received when a 2 No commas(,) or dollar signs ($) 11
borrower prepays on his loan as
reported by the Servicer.
PREPAY_PENALTY_ WAIVED The prepayment penalty amount for 2 No commas(,) or dollar signs ($) 11
the loan waived by the servicer.
MOD_DATE The Effective Payment Date of the MM/DD/YYYY 10
Modification for the loan.
MOD_TYPE The Modification Type. Varchar - value can be alpha or 30
numeric
DELINQ_P&I_ADVANCE_AMT The current outstanding principal 2 No commas(,) or dollar signs ($) 11
and interest advances made by
Servicer.
MLCC 2006-2
FRB AAR
12579707.2
00000000.0.XXXXXXXX
ATTACHMENT 3-B
REPORTING DATA FOR DEFAULTED LOANS
TABLE: DELINQUENCY
NAME TYPE SIZE
---- ---- ----
SERVICER LOAN # NUMBER 8
(DOUBLE)
INVESTOR LOAN # NUMBER 8
(DOUBLE)
BORROWER NAME TEXT 20
ADDRESS TEXT 30
STATE TEXT 2
Due Date Date/Time 8
ACTION CODE TEXT 2
FC Received Date/Time 8
File Referred to Atty Date/Time 8
NOD Date/Time 8
Complaint Filed Date/Time 8
Sale Published Date/Time 8
Target Sale Date Date/Time 8
Actual Sale Date Date/Time 8
Loss Mit Approval Date Date/Time 8
Loss Mit Type Text 5
Loss Mit Estimated Completion Date Date/Time 8
Loss Mit Actual Completion Date Date/Time 8
Loss Mit Broken Plan Date Date/Time 8
BK Chapter Text 6
BK Filed Date Date/Time 8
Post Petition Due Date/Time 8
Motion for Relief Date/Time 8
Lift of Stay Date/Time 8
RFD Text 10
Occupant Code Text 10
Eviction Start Date Date/Time 8
Eviction Completed Date Date/Time 8
List Price Currency 8
List Date Date/Time 8
Accepted Offer Price Currency 8
Accepted Offer Date Date/Time 8
Estimated REO Closing Date Date/Time 8
Actual REO Sale Date Date/Time 8
MLCC 2006-2
FRB AAR
12579707.2
00000000.0.XXXXXXXX
- ITEMS IN BOLD ARE MANDATORY FIELDS. WE MUST RECEIVE INFORMATION IN THOSE
FIELDS EVERY MONTH IN ORDER FOR YOUR FILE TO BE ACCEPTED.
The Action Code Field should show the applicable numeric code to indicate that a
special action is being taken. The Action Codes are the following:
12-RELIEF PROVISIONS
15-BANKRUPTCY/LITIGATION
20-REFERRED FOR DEED-IN-LIEU
30-REFERRED FORE FORECLOSURE
00-XXXXXX
00-XXXXXXXXXX
00-XXX-XXXX FOR SALE
71-THIRD PARTY SALE/CONDEMNATION
72-REO-PENDING CONVEYANCE-POOL INSURANCE CLAIM FILED
Xxxxx Fargo Bank will accept alternative Action Codes to those above, provided
that the Codes are consistent with industry standards. If Action Codes other
than those above are used, the Servicer must supply Xxxxx Fargo Bank with a
description of each of the Action Codes prior to sending the file.
Description of Action Codes:
ACTION CODE 12 - To report a Mortgage Loan for which the Borrower has been
granted relief for curing a delinquency. The Action Date is the date the relief
is expected to end. For military indulgence, it will be three months after the
Borrower's discharge from military service.
ACTION CODE 15 - To report the Borrower's filing for bankruptcy or instituting
some other type of litigation that will prevent or delay liquidation of the
Mortgage Loan. The Action Date will be either the date that any repayment plan
(or forbearance) instituted by the bankruptcy court will expire or an additional
date by which the litigation should be resolved.
ACTION CODE 20 - To report that the Borrower has agreed to a deed-in-lieu or an
assignment of the property. The Action Date is the date the Servicer decided to
pursue a deed-in-lieu or the assignment.
ACTION CODE 30 - To report that the decision has been made to foreclose the
Mortgage Loan. The Action Date is the date the Servicer referred the case to the
foreclosure attorney.
ACTION CODE 60 - To report that a Mortgage Loan has been paid in full either at,
or prior to, maturity. The Action Date is the date the pay-off funds were
remitted to the Master Servicer.
MLCC 2006-2
FRB AAR
12579707.2
00000000.0.XXXXXXXX
ACTION CODE 65 - To report that the Servicer is repurchasing the Mortgage Loan.
The Action Date is the date the repurchase proceeds were remitted to the Master
Servicer.
ACTION CODE 70 - To report that a Mortgage Loan has been foreclosed or a
deed-in-lieu of foreclosure has been accepted, and the Servicer, on behalf of
the owner of the Mortgage Loan, has acquired the property and may dispose of it.
The Action Date is the date of the foreclosure sale or, for deeds-in-lieu, the
date the deed is recorded on behalf of the owner of the Mortgage Loan.
ACTION CODE 71 - To report that a Mortgage Loan has been foreclosed and a third
party acquired the property, or a total condemnation of the property has
occurred. The Action Date is the date of the foreclosure sale or the date the
condemnation award was received.
ACTION CODE 72 - To report that a Mortgage Loan has been foreclosed, or a
deed-in-lieu has been accepted, and the property may be conveyed to the mortgage
insurer and the pool insurance claim has been filed. The Action Date is the date
of the foreclosure sale, or, for deeds-in-lieu, the date of the deed for
conventional mortgages.
The Loss Mit Type field should show the approved Loss Mitigation arrangement.
The following are acceptable:
ASUM-APPROVED ASSUMPTION
BAP-BORROWER ASSISTANCE PROGRAM
CO-CHARGE OFF
DIL-DEED-IN-LIEU
FFA-FORMAL FORBEARANCE AGREEMENT
MOD-LOAN MODIFICATION
PRE-PRE-SALE
SS-SHORT SALE
MISC-ANYTHING ELSE APPROVED BY THE PMI OR POOL INSURER
Xxxxx Fargo Bank will accept alternative Loss Mitigation Types to those above,
provided that they are consistent with industry standards. If Loss Mitigation
Types other than those above are used, the Servicer must supply Xxxxx Fargo Bank
with a description of each of the Loss Mitigation Types prior to sending the
file.
The Occupant Code field should show the current status of the property. The
acceptable codes are:
MORTGAGOR
TENANT
UNKNOWN
VACANT
MLCC 2006-2
FRB AAR
12579707.2
00000000.0.XXXXXXXX
ATTACHMENT 3-C
REALIZED LOSS CALCULATION INFORMATION
XXXXX FARGO BANK, N.A. Form 332
Calculation of Realized Loss
Purpose
To provide the Servicer with a form for the calculation of any Realized Loss (or
gain) as a result of a Mortgage Loan having been foreclosed and Liquidated.
Distribution
The Servicer will prepare the form in duplicate and send the original together
with evidence of conveyance of title and appropriate supporting documentation to
the Master Servicer with the Monthly Accounting Reports which supports the
Mortgage Loan's removal from the Mortgage Loan Activity Report. The Servicer
will retain the duplicate for its own records.
Due Date
With respect to any liquidated Mortgage Loan, the form will be submitted to the
Master Servicer no later than the date on which statements are due to the Master
Servicer under Section 4.02 of this Agreement (the "Statement Date") in the
month following receipt of final liquidation proceeds and supporting
documentation relating to such liquidated Mortgage Loan; provided, that if such
Statement Date is not at least 30 days after receipt of final liquidation
proceeds and supporting documentation relating to such liquidated Mortgage Loan,
then the form will be submitted on the first Statement Date occurring after the
30th day following receipt of final liquidation proceeds and supporting
documentation.
Preparation Instructions
The numbers on the form correspond with the numbers listed below.
1. The actual Unpaid Principal Balance of the Mortgage Loan.
2. The Total Interest Due less the aggregate amount of servicing fee that would
have been earned if all delinquent payments had been made as agreed.
3-7. Complete as necessary. All line entries must be supported by copies of
appropriate statements, vouchers, receipts, canceled checks, etc., to
document the expense. Entries not properly documented will not be
reimbursed to the Servicer.
8. Accrued Servicing Fees based upon the Scheduled Principal Balance of the
Mortgage Loan as calculated on a monthly basis.
10. The total of lines 1 through 9.
Credits
11-17. Complete as necessary. All line entries must be supported by copies of
the appropriate claims
MLCC 2006-2
FRB AAR
12579707.2
00000000.0.XXXXXXXX
forms, statements, payment checks, etc. to document the credit. If the
Mortgage Loan is subject to a Bankruptcy Deficiency, the difference
between the Unpaid Principal Balance of the Note prior to the Bankruptcy
Deficiency and the Unpaid Principal Balance as reduced by the Bankruptcy
Deficiency should be input on line 16.
18. The total of lines 11 through 17.
Total Realized Loss (or Amount of Any Gain)
19. The total derived from subtracting line 18 from 10. If the amount
represents a realized gain, show the amount in parenthesis ( ).
MLCC 2006-2
FRB AAR
12579707.2
00000000.0.XXXXXXXX
XXXXX FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS
XXXXX FARGO BANK, N.A. Trust: _______________________________
Prepared by: __________________ Date: _______________
Phone: ______________________
Servicer Loan No. Servicer Name Servicer Address
XXXXX FARGO BANK, N.A.
Loan No._____________________________
Borrower's Name:______________________________________________________
Property
Address:______________________________________________________________
LIQUIDATION AND ACQUISITION EXPENSES:
Actual Unpaid Principal Balance of Mortgage Loan $_______________(1)
Interest accrued at Net Rate ________________(2)
Attorney's Fees ________________(3)
Taxes ________________(4)
Property Maintenance ________________(5)
MI/Hazard Insurance Premiums ________________(6)
Hazard Loss Expenses ________________(7)
Accrued Servicing Fees ________________(8)
Other (itemize) ________________(9)
$__________________
TOTAL EXPENSES $______________(10)
CREDITS:
Escrow Balance $______________(11)
HIP Refund _______________(12)
Rental Receipts _______________(13)
Hazard Loss Proceeds _______________(14)
Primary Mortgage Insurance Proceeds _______________(15)
Proceeds from Sale of Acquired Property _______________(16)
Other (itemize) _______________(17)
_______________
_______________
TOTAL CREDITS $______________(18)
TOTAL REALIZED LOSS (OR AMOUNT OF GAIN) $______________
MLCC 2006-2
FRB AAR
12579707.2
00000000.0.XXXXXXXX
ATTACHMENT 4
FORM OF ITEM 1123 CERTIFICATION OF SERVICER
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Xxxxxxx Xxxxx Mortgage Investors Trust, Series MLCC 2006-2 Mortgage
Pass-Through Certificates
I, [identify name of certifying individual], [title of certifying individual] of
[name of servicing company] (the "Servicer"), hereby certify that:
(1) A review of the activities of the Servicer during the preceding
calendar year and of the performance of the Servicer under the [related
servicing agreement] (the "Servicing Agreement") has been made under my
supervision; and
(2) To the best of my knowledge, based on such review, the Servicer
has fulfilled all its obligations under the related Servicing Agreement in all
material respects throughout such year or a portion thereof[, or, if there has
been a failure to fulfill any such obligation in any material respect, I have
specified below each such failure known to me and the nature and status
thereof].
Date:
[Servicer]
By: ____________________________
Name: __________________________
Title: __________________________
00000000.0.XXXXXXXX
ATTACHMENT 5
FORM OF ASSESSMENT OF COMPLIANCE
[DATE]
Xxxxxxx Xxxxx Mortgage Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Re: Mortgage Loan Purchase and Servicing Agreement, dated as of December
1, 2005, by and between First Republic Bank, as seller and servicer,
and Xxxxxxx Xxxxx Bank, USA, as initial purchaser.
For the calendar year ending December 31, [2006] or portion thereof, First
Republic Bank, as Servicer, for the Issuing Entity has complied in all material
respects with the Applicable Servicing Criteria in Exhibit 12 of the Agreement.
All capitalized terms used herein but not defined herein shall have the
meanings assigned to them in the Agreement.
Date:__________________
FIRST REPUBLIC BANK
By: __________________________
Name:
Title:
ACKNOWLEDGED AND AGREED:
XXXXX FARGO BANK, N.A.
By: ____________________________
Name:
Title:
XXXXXXX XXXXX MORTGAGE INVESTORS, INC., as Depositor
By: ____________________________
Name:
Title:
00000000.0.XXXXXXXX
