Exhibit 99.16
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This Assignment, Assumption and Recognition Agreement (this "AAR
Agreement") is made and entered into as of August 15, 2006 (the "Closing Date"),
among Citigroup Global Markets Realty Corp., (the "Assignor"), Maia Mortgage
Finance Statutory Trust (the "Assignee") and Countrywide Home Loans, Inc. (the
"Company").
For and in consideration of the sum of good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, and of the mutual
covenants herein contained, the parties hereto hereby agree as follows:
Assignment and Conveyance
1. The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title, interest and obligation of the
Assignor, as purchaser, in, to and under (a) those certain Mortgage Loans set
forth on the schedule (the "Mortgage Loan Schedule") attached hereto as
Attachment 1 (the "Mortgage Loans") and (b) except as described below, that
certain Amended and Restated Master Mortgage Loan Purchase and Servicing
Agreement dated as of December 15, 2003, between the Assignor, as purchaser and
the Company, as seller, as amended by Amendment Reg AB, dated as of February 28,
2006 between the Assignor and the Company (the "Agreement"), solely insofar as
the Agreement relates to the Mortgage Loans.
The Assignor specifically reserves and does not assign to the Assignee
hereunder any right, title and interest in, to and under and any mortgage loans
subject to the Agreement which are not the Mortgage Loans set forth on
Attachment 1 and are not the subject of this AAR Agreement. In addition, the
Assignor specifically reserves and does not assign, the right to enforce the
representations and warranties set forth in Section 3.02 of the Agreement, and
the corresponding remedies set forth in Section 3.03 of the Agreement.
Representations and Warranties
2. Assignor warrants and represents to Assignee and Company as of the
Closing Date:
(a) Attached hereto as Attachment 2 is a true and accurate copy of the
Agreement, which Agreement is in full force and effect as of the Closing
Date and the provisions of which have not been waived, amended or modified
in any respect, except as contemplated herein, nor has any notice of
termination been given thereunder;
(b) Assignor is the lawful owner of the Mortgage Loans with full right
to transfer the Mortgage Loans and any and all of its interests, rights and
obligations under the Agreement free and clear of any and all claims and
encumbrances; and upon the transfer of the Mortgage Loans to Assignee,
Assignee shall have good title to the Mortgage Loans free and clear of any
and all liens, claims and encumbrances;
(c) Assignor is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all
requisite power and authority to sell, transfer and assign the Mortgage
Loans;
(d) Assignor has full corporate power and authority to execute,
deliver and perform its obligations under this AAR Agreement, and to
consummate the transactions set forth herein. The consummation of the
transactions contemplated by this AAR Agreement is in the ordinary course
of Assignor's business and will not conflict with, or result in a breach
of, any of the terms, conditions or provisions of Assignor's certificate of
incorporation 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 AAR Agreement and
the consummation by it of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action on the part of Assignor.
This AAR Agreement has been duly executed and delivered by Assignor and,
upon the due authorization, execution and delivery by Assignee and Company,
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;
(e) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by Assignor in connection with the execution, delivery or
performance by Assignor of this AAR Agreement, or the consummation by it of
the transactions contemplated hereby;
(f) There is no action, suit, proceeding or investigation pending or
threatened against the Assignor, before any court, administrative agency or
other tribunal, which would draw into question the validity of this AAR
Agreement or the Agreement, or which, either in any one instance or in the
aggregate, would result in any material adverse change in the ability of
the Assignor to perform its obligations under this AAR Agreement, and the
Assignor is solvent; and
(g) The Assignor hereby represents and warrants, for the benefit of
the Assignee that the representations and warranties set forth in Section
3.02 of the Agreement, are true and correct in all material respects as of
the date hereof, provided that the representation and warranty set forth in
Section 3.02(a) shall, for purposes of this AAR Agreement, relate to the
Mortgage Loan Schedule.
3. Assignee warrants and represents to, and covenants with, Assignor
and Company as of the Closing Date:
(a) Assignee is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization and has all
requisite power and authority to acquire the Mortgage Loans;
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(b) Assignee has full power and authority to execute, deliver and
perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of 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 documents
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 AAR Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all
necessary corporate action on the part of Assignee. This AAR Agreement has
been duly executed and delivered by Assignee and, upon the due
authorization, execution and delivery by Assignor and Company, 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 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 AAR Agreement, or the consummation by it of
the transactions contemplated hereby;
(d) There is no action, suit, proceeding or investigation pending or
threatened against the Assignee, before any court, administrative agency or
other tribunal, which would draw into question the validity of this AAR
Agreement, or which, either in any one instance or in the aggregate, would
result in any material adverse change in the ability of the Assignee to
perform its obligations under this AAR Agreement, and the Assignee is
solvent; and
(e) The Assignee agrees to be bound, as "Purchaser" by all of the
terms, covenants and conditions of the Agreement and this AAR Agreement,
and from and after the date hereof, the Assignee assumes for the benefit of
each of the Assignor and the Company all of the Assignor's obligations as
"Purchaser" thereunder that arise from and after the date hereof (all
obligations of the Assignor that arise prior to the date hereof shall be
retained by the Assignor), with respect to the Mortgage Loans
4. Company warrants and represents to, and covenants with, Assignor
and Assignee as of the Closing Date:
(a) Attached hereto as Attachment 2 is a true and accurate copy of the
Agreement, which Agreement is in full force and effect as of the Closing
Date and the provisions of which have not been waived, amended or modified
in any respect, except as contemplated herein, nor has any notice of
termination been given thereunder;
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(b) Company is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, and has all
requisite power and authority to perform its obligations under the
Agreement;
(c) Company has full corporate power and authority to execute, deliver
and perform its obligations under this AAR Agreement, and to consummate the
transactions set forth herein. The consummation of the transactions
contemplated by this AAR Agreement is in the ordinary course of Company's
business and will not conflict with, or result in a breach of, any of the
terms, conditions or provisions of Company's articles of incorporation or
by-laws or any legal restriction, or any material agreement or instrument
to which Company is now a party or by which it is bound, or result in the
violation of any law, rule, regulation, order, judgment or decree to which
Company or its property is subject. The execution, delivery and performance
by Company of this AAR Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all
necessary action on the part of Company. This AAR Agreement has been duly
executed and delivered by Company, and, upon the due authorization,
execution and delivery by Assignor and Assignee, will constitute the valid
and legally binding obligation of Company, enforceable against Company 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;
(d) No consent, approval, order or authorization of, or declaration,
filing or registration with, any governmental entity is required to be
obtained or made by Company in connection with the execution, delivery or
performance by Company of this AAR Agreement, or the consummation by it of
the transactions contemplated hereby;
(e) There is no action, suit, proceeding or investigation pending or,
to the best of the Company's knowledge, threatened against the Company,
before any court, administrative agency or other tribunal, which would draw
into question the validity of this AAR Agreement or the Agreement, or
which, either in any one instance or in the aggregate, would result in any
material adverse change in the ability of the Company to perform its
obligations under this AAR Agreement or the Agreement, and the Company is
solvent; and
(f) Pursuant to Section 8.07(c) of the Agreement, the Company hereby
represents and warrants, for the benefit of the Assignor and the Assignee,
that the representations and warranties set forth in Section 3.01 of the
Agreement, are true and correct as of the date hereof (except with respect
to Section 3.01(i), (j) and (k) which were true and correct as of the date
of the Assignors purchase of the Mortgage Loans from the Company.
Remedies for Breach of Representations and Warranties
5. The Company hereby acknowledges and agrees that the remedies
available to the Assignor and the Assignee in connection with any breach of the
representations and warranties made by the Company set forth in Section 4 hereof
shall be as set forth in Section 3.03
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of the Agreement as if they were set forth herein (including without limitation
the repurchase and indemnity obligations set forth therein).
Recognition of Assignee.
6. From and after the date hereof, the Company shall note the transfer
of the Mortgage Loans to the Assignee in its books and records, the Company
shall recognize the Assignee as the owner of the Mortgage Loans and the Company
shall service the Mortgage Loans for the benefit of the Assignee pursuant to the
Agreement, the terms of which are incorporated herein by reference, as modified
by this AAR Agreement. It is the intention of the Assignor, the Company and the
Assignee that the Agreement shall be binding upon and inure to the benefit of
the Company and the Assignee and their respective successors and assigns.
The Assignee's address for purposes of all notices and correspondence
related to the Mortgage Loans and the Agreement is:
Maia Mortgage Finance Statutory Trust
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Phone: (215) ___-____
Facsimile: (215) ___-____
The Assignee's wire transfer instructions for purposes of all
remittances and payments related to the Mortgage Loans and the Agreement
is:
[BANK]
City:
ABA#:
Acct #:
Acct Name:
FFC to:
Modification of the Agreement:
7. The Company and Assignor hereby amend the Agreement with respect to
the Mortgage Loans as follows:
Article IV of the Agreement is hereby amended by adding the following as
Section 4.19 of the Agreement:
Section 4.19 Special Servicing Provisions/Foreclosure Proceedings. In
connection with any Securitization Transaction, the following provisons shall
apply:
Notwithstanding anything in this Agreement to the contrary, for so
long as the Master Servicer has not notified Countrywide that Maia Mortgage
Finance Statutory Trust ("Maia") is no longer entitled to the rights
described in this Section 4.19:
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(a) Countrywide shall not commence foreclosure proceedings with
respect to a Mortgage Loan unless (i) prior to its commencement of
such foreclosure proceedings, it notifies Maia and the Master Servicer
of its intention to do so, and (ii) Maia, either directly or through
the Master Servicer, does not, within five Business Days following
such notification, affirmatively object in writing to such action.
(b) In the event that Countrywide determines not to proceed with
foreclosure proceedings with respect to a Mortgage Loan that becomes
60 days' or more delinquent, Countrywide shall, prior to taking any
action with respect to such Mortgage Loan, promptly provide Maia and
the Master Servicer with notice of such determination and a
description of such other action as it intends to take with respect to
such Mortgage Loan; provided, that Countrywide shall not be permitted
to proceed with any such action unless Maia, either directly or
through the Master Servicer, does not, within five Business Days
following such notice, affirmatively object in writing to Countrywide
taking such action.
(c) If Maia timely and affirmatively objects in writing to an action
or contemplated action of Countrywide pursuant to either (a) or (b)
above, then Maia shall instruct the Master Servicer to hire, at Maia's
sole cost and expense, three appraisal firms, selected by the Master
Servicer in its sole and absolute discretion, to compute the fair
value of the Mortgaged Property relating to the related Mortgage Loan
utilizing the ▇▇▇▇▇▇ Mae Form 2055 Exterior-Only Inspection
Residential Appraisal Report (each such appraisal-firm computation, a
"Fair Value Price"), in each case (other than as set forth in (d)
below) no later than 30 days from the date of such Maia objection.
Maia shall, no later than 5 days after the expiration of such 30-day
period, purchase such Mortgage Loan and the related Mortgaged Property
at an amount equal to the sum of (i) accrued and unpaid interest on
such Mortgage Loan as of such purchase date ("Accrued Interest") and
(ii) the highest of such three Fair Value Prices respectively
determined by such appraisal firms, and shall promptly deliver such
amount to Countrywide for deposit into the Custodial Account. All
costs relating to the computation of the related Fair Value Prices
shall be for the account of Maia and shall be paid by Maia at the time
such Mortgage Loan and the related Mortgaged Property are purchased by
Maia.
(d) If the Master Servicer shall not have received three Fair Value
Prices at the end of the 30-day period set forth in (c) above, then:
(i) The Master Servicer shall obtain such three Fair Value Prices
no later than 15 days after the end of such 30-day period.
(ii) If the Master Servicer shall have only received two Fair
Value Prices at the end of such 15-day extension period, then the
Master
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Servicer will determine, in its sole and absolute discretion, the fair
value of the Mortgaged Property relating to such Mortgage Loan (which
may include Countrywide's recommendations with respect to such
Mortgage Loan, related Insurance Proceeds and the current delinquency
status of such Mortgage Loan) (such fair value, the "Master Servicer
Fair Value Price"), and Maia shall, no later than 5 days after the
expiration of such 15-day extension period, purchase (and deliver to
Countrywide the purchase price for) such Mortgage Loan and the related
Mortgaged Property at an amount equal to the sum of (A) Accrued
Interest thereon and (B) the higher of (1) the highest of such two
Fair Value Prices determined by such appraisal firms and (2) the
Master Servicer Fair Value Price.
(iii) If the Master Servicer shall have received only one Fair
Value Price at the end of such 15-day extension period, then the
Master Servicer will determine, in its sole and absolute discretion,
the Master Servicer Fair Value Price of the Mortgaged Property related
to such Mortgage Loan, and:
(A) if such Master Servicer Fair Value Price is equal to or
greater than the unpaid principal balance of the related Mortgage
Loan as of such date (the "Unpaid Principal Balance"), then Maia
shall, no later than 5 days after the expiration of such 15-day
extension period, purchase (and deliver to Countrywide the
purchase price for) such Mortgage Loan and the related Mortgaged
Property at an amount equal to the sum of (1) Accrued Interest
thereon and (2) such Master Servicer Fair Value Price; and
(B) if such Master Servicer Fair Value Price is less than
the related Unpaid Principal Balance, then Maia shall, no later
than 5 days after the expiration of such 15-day extension period,
purchase (and deliver to Countrywide the purchase price for) such
Mortgage Loan and the related Mortgaged Property at an amount
equal to the sum of (1) Accrued Interest thereon and (2) the
related Unpaid Principal Balance (such sum, the "Preliminary
Purchase Price"); provided, that the provisions of clause (d)(iv)
shall thereafter apply.
(iv) Following the payment by Maia of the Preliminary Purchase
Price, the Master Servicer shall continue to hire appraisal firms at
Maia's sole cost and expense to compute the Fair Value Price of the
Mortgaged Property related to such Mortgage Loan, and at such time as
two such Fair Value Prices shall have been obtained:
(A) if the sum of (1) Accrued Interest on the related Mortgage
Loan and (2) the higher of (x) the highest of such two Fair Value
Prices determined by such appraisal firms and (y) the Master
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Servicer Fair Value Price of the Mortgaged Property related to
such Mortgage Loan (such sum, the "Revised Fair Value Price") is
greater than such Preliminary Purchase Price, then the Master
Servicer shall promptly notify Maia and Countrywide of such
calculation, and Maia shall, no later than 5 days after such
notice, remit to Countrywide, for deposit into the Custodial
Account, the difference between such Revised Fair Value Price and
such Preliminary Purchase Price; and
(B) if such Preliminary Purchase Price is greater than such
Revised Fair Value Price, then the Master Servicer shall promptly
notify Maia and Countrywide of such calculation, and Countrywide
shall, no later than 5 days after such notice, remit to Maia,
from funds then on deposit in the Custodial Account, the
difference between such Preliminary Purchase Price and the sum of
(1) such Revised Fair Value Price and (2) the amount of interest
that accrued on the related Mortgage Loan during the period
beginning on the date Maia paid such Preliminary Purchase Price
to Countrywide and ending on the date that Countrywide remitted
such difference to Maia pursuant to this clause (d)(iv)(B).
(e) Notwithstanding anything herein to the contrary, Maia shall not be
entitled to any of its rights set forth herein with respect to a
Mortgage Loan following its failure to purchase such Mortgage Loan and
the related Mortgaged Property, at the related purchase price set
forth in this Section 4.19 within the timeframe set forth in this
Section 4.19 following Maia's objection to an action of Countrywide,
and Countrywide shall provide the Master Servicer written notice of
such failure.
(f) Any notice, confirmation, instruction or objection pursuant to
paragraphs (a), (b), (c) and (d) above may be delivered via facsimile
or other written or electronic communication as the parties hereto and
Maia may agree to from time to time.
(g) For the avoidance of doubt, Maia's rights set forth in this
Section 4.19 are intended to provide Maia, for so long as it has not
forfeited its rights under this Section 4.19 as set forth in clause
(e) above, with the unilateral right to control foreclosure decisions
in respect of delinquent and defaulted Mortgage Loans, and certain
exclusive purchase rights so as to maximize the recovery value on
delinquent and defaulted Mortgage Loans.
To the extent that Maia purchases any Mortgage Loan pursuant to this
Section 4.19, Countrywide will continue to service such Mortgage Loan in
accordance with this Agreement. The parties acknowledge that, in such
event, the
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Master Servicer will have no duty or responsibility to master service any
such Mortgage Loan.
Miscellaneous
8. This AAR Agreement shall be construed in accordance with the laws
of the State of New York, without regard to conflicts of law principles other
than Section 5-1401 of the New York General Obligations Law which shall govern,
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
9. No term or provision of this 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.
10. This AAR Agreement shall inure to the benefit of the successors
and assigns of the parties hereto. Any entity into which Assignor, Assignee or
Company may be merged or consolidated shall, without the requirement for any
further writing, be deemed Assignor, Assignee or Company, respectively,
hereunder.
11. Each of this AAR Agreement and the Agreement shall survive the
conveyance of the Mortgage Loans and the assignment of the Agreement (to the
extent assigned hereunder) by Assignor to Assignee and nothing contained herein
shall supersede or amend the terms of the Agreement.
12. This 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.
13. In the event that any provision of this AAR Agreement conflicts
with any provision of the Agreement with respect to the Mortgage Loans, the
terms of this AAR Agreement shall control.
14. Capitalized terms used in this AAR Agreement (including the
exhibits hereto) but not defined in this AAR Agreement shall have the meanings
given to such terms in the Agreement.
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IN WITNESS WHEREOF, the parties have caused this AAR Agreement to be
executed by their duly authorized officers as of the date first above written.
CITIGROUP GLOBAL MARKETS REALTY CORP.,
as Assignor
By:
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
MAIA MORTGAGE FINANCE STATUTORY TRUST,
as Assignee
By:
------------------------------------
Name:
----------------------------------
Its:
-----------------------------------
COUNTRYWIDE HOME LOANS, INC., as Company
By:
------------------------------------
Name:
----------------------------------
Its:
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Attachment 1
Mortgage Loans
Attachment 2
Agreement
[See Exhibits 99.14 and 99.15]
