EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND
RECOGNITION AGREEMENT (“ Agreement ”), dated as
of November 15, 2006 (the “ Closing Date ”),
among UBS Real Estate Securities Inc. (the “ Assignor
” and “ UBSRES ”), Mortgage Asset
Securitization Transactions, Inc. (the “
Assignee ”), and IndyMac Bank, F.S.B. (the
“ Company ”):
For good and valuable consideration the
receipt and sufficiency of which hereby are acknowledged, and of
the premises and mutual covenants herein contained, the parties
hereto hereby agree as follows:
1.
a. (i) The Assignor hereby
conveys, sells, grants, transfers and assigns to the Assignee all
of the right, title and interest (other than those rights
specifically retained by the Assignor pursuant to this Agreement)
of the Assignor, as Purchaser, in, to and under (a) those certain
Mortgage Loans listed on Exhibit A attached hereto (the “
Mortgage Loans ”) and (b) solely with respect to the
servicing provisions as they relate to the Mortgage Loans (as
specified in Section 1(c) below), that certain Master Loan Purchase
and Servicing Agreement, dated as of September 1, 2006, by and
between UBSRES and the Company, as the same may be amended from
time to time (the “ Servicing Agreement ”).
For purposes of this Agreement, the term “Servicing
Agreement” includes any separate bill of sale, letter,
assignment and conveyance or other instrument pursuant to which
Company and Assignor effectuated the purchase and sale of any
Mortgage Loan following the execution and delivery of the Servicing
Agreement.
b.
The Assignor specifically reserves and
does not assign to the Assignee hereunder any and all right, title
and interest in, to and under and all obligations of the Assignor
with respect to any mortgage loans subject to the Servicing
Agreement which are not the Mortgage Loans set forth on Exhibit A
attached hereto and are not the subject of this
Agreement.
c.
The Assignor specifically reserves and
does not assign to the Assignee hereunder those rights under the
Servicing Agreement that do not relate to the servicing of the
Mortgage Loans (including without limitation, the representations
and warranties made by the Company and the document delivery
requirements of the Company and the remedies (including
indemnification) available for breaches thereof).
d.
The Assignor specifically reserves and
does not assign to the Assignee hereunder any prepayment penalties
received on the Mortgage Loans that are required to be paid to the
Assignor (and not entitled to be retained by the Company as
additional servicing compensation) under the Servicing
Agreement.
2.
The Assignor warrants and represents to
the Assignee and the Company as of the
Closing Date as defined herein:
a.
The 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
Servicing Agreement as they relate to the Mortgage Loans, free and
clear from any and all claims and encumbrances; and upon the
transfer of the Mortgage Loans to the Assignee as contemplated
herein, the Assignee shall have good title to each and every
Mortgage Loan, as well as any and all of the Assignor’s
interests, rights and obligations under the Servicing Agreement as
they relate to the Mortgage Loans, free and clear of any and all
liens, claims and encumbrances;
b.
Attached hereto as Exhibit B is a true
and accurate copy of the Servicing Agreement, which agreement is 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;
c.
The 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
acquire, own and sell the Mortgage Loans;
d.
The Assignor has full corporate power and
authority to execute, deliver and perform its obligations under
this Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by
this Agreement is in the ordinary course of the Assignor’s
business and will not conflict with, or result in a breach of, any
of the terms, conditions or provisions of the Assignor’s
charter or by-laws or any legal restriction, or any material
agreement or instrument to which the 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 the Assignor or its
property is subject. The execution, delivery and performance
by the Assignor of this Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all
necessary corporate action on part of the Assignor. This
Agreement has been duly executed and delivered by the Assignor and,
upon the due authorization, execution and delivery by the Assignee
and the Company, will constitute the valid and legally binding
obligation of the Assignor enforceable against the 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; and
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 the
Assignor in connection with the execution, delivery or performance
by the Assignor of this Agreement, or the consummation by it of the
transactions contemplated hereby.
3.
The Assignee warrants and represents to,
and covenants with, the Assignor and the Company that:
a.
The Assignee is a corporation 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, own and purchase the Mortgage
Loans;
b.
The Assignee has full power and authority
to execute, deliver and perform under this Agreement, and to
consummate the transactions set forth herein. The execution,
delivery and performance by the Assignee of this Agreement, and the
consummation by it of the transactions contemplated hereby, have
been duly authorized by all necessary corporate action of the
Assignee. This Agreement has been duly executed and delivered
by the Assignee and constitutes the valid and legally binding
obligation of the Assignee enforceable against the Assignee in
accordance with its respective terms;
c.
To the best of Assignee’s
knowledge, 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 the Assignee in
connection with the execution, delivery or performance by the
Assignee of this Agreement, or the consummation by it of the
transactions contemplated hereby; and
d.
The Assignee agrees to be bound, as
Purchaser, by all of the terms, covenants and conditions of the
Servicing Agreement and the Mortgage Loans, and from and after the
date hereof, the Assignee assumes for the benefit of each of the
Company and the Assignor all of the Assignor’s obligations as
Purchaser thereunder, with respect to the Mortgage
Loans.
4.
The Company warrants and represents to,
and covenants with, the Assignor and the Assignee as of the Closing
Date as defined herein:
a.
Attached hereto as Exhibit B is a true
and accurate copy of the 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.
The 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
service the Mortgage Loans and otherwise to perform its obligations
under the Servicing Agreement;
c.
Pursuant to Section 12 of the Servicing
Agreement, the Company hereby represents and warrants, for the
benefit of the Assignor, the Assignee and the Trust, that the
representations and warranties set forth in Subsections 7.01 and
7.02 of the Servicing Agreement, are true and correct as of the
date hereof;
d.
The Company has full corporate power and
authority to execute, deliver and perform its obligations under
this Agreement, and to consummate the transactions set forth
herein. The consummation of the transactions contemplated by
this Agreement is in the ordinary course of the Company’s
business and will not conflict with, or result in a breach of, any
of the terms, conditions or provisions of the Company’s
charter or bylaws or any legal restriction, or any material
agreement or instrument to which the Company is now a party or by
which it is bound, or result in the violation of any law, rule,
regulation, order, judgment or decree to which the Company or its
property is subject. The execution, delivery and performance
by the Company of this Agreement and the consummation by it of the
transactions contemplated hereby, have been duly authorized by all
necessary corporate action on part of the Company. This
Agreement has been duly executed and delivered by the Company, and,
upon the due authorization, execution and delivery by the Assignor
and the Assignee, will constitute the valid and legally binding
obligation of the Company, enforceable against the Company in
accordance with its terms except as enforceability may be limited
by bankruptcy, reorganization, insolvency, moratorium or other
similar laws 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 the
Company in connection with the execution, delivery or performance
by the Company of this Agreement, or the consummation by it of the
transactions contemplated hereby;
f.
The Company shall establish a Custodial
Account and an Escrow Account under the Servicing Agreement in
favor of the Assignee, or its designee with respect to the Mortgage
Loans separate from the Custodial Account and Escrow Account
previously established under the Servicing Agreement in favor of
the Assignor. The Custodial Account and Escrow Account shall
be entitled “IndyMac Bank, F.S.B., as servicer in trust for
MASTR Adjustable Rate Mortgages Trust 2006-OA2”;
g.
There is no action, suit, proceeding or
investigation pending or, to 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 Agreement or the Servicing 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 Agreement or the Servicing Agreement.
The Company is solvent; and
h.
If any Mortgage has been recorded in the
name of Mortgage Electronic Registration System, Inc. (“
MERS ”) or its designee, the Company shall take all
actions as are necessary to cause the Trustee (as defined below) on
behalf of MASTR Adjustable Rate Mortgages Trust 2006-OA2 to be
shown as the owner of the related Mortgage Loan on the record of
MERS for the purpose of the system of recording transfers of
beneficial ownership of mortgage maintained by MERS.
Recognition by the Company of the
Trustee
5.
The Company hereby recognizes that the
Mortgage Loans will be transferred by the Assignee to U.S. Bank
National Association, as Trustee for the holders of MASTR
Adjustable Rate Mortgages Trust 2006-OA2 (including its successors
in interest and any successor trustee under the Pooling Agreement
defined below, the “ Trustee ”) in a
securitization transaction pursuant to a Pooling and Servicing
Agreement, dated as of October 1, 2006 (the “ Pooling
Agreement ”), among the Assignee, the Assignor, the
Trustee, Wells Fargo Bank, N. A., as master servicer (the
“ Master Servicer ”), trust administrator and
custodian. From and after the date hereof, the Company
acknowledges and agrees that (A) the Trustee will be the owner of
the Mortgage Loans, and Wells Fargo Bank, N.A., will be the Master
Servicer, trust administrator and a custodian of the Mortgage
Loans, (B) the Company shall look solely to the Trustee, on behalf
of the Trust, for performance of any obligations of the Assignor
insofar as they relate to the Mortgage Loans and (C) the Mortgage
Loans will be part of a REMIC, and the Company shall service the
Mortgage Loans and any real property acquired upon default thereof
(including, without limitation, making or permitting any
modification, waiver or amendment of any term of any Mortgage Loan)
in accordance with the Servicing Agreement but in no event in a
manner that would (i) cause the REMIC to fail to qualify as a REMIC
or (ii) result in the imposition of a tax upon the REMIC (including
but not limited to the tax on prohibited transactions as defined in
Section 860F(a)(2) of the Code, the tax on contributions to a REMIC
set forth in Section 860G(d) of the Code, and the tax on “net
income from foreclosure property” as set forth in Section
860G(c) of the Code). It is the intention of the Assignor,
the Company and the Assignee that this Agreement shall be binding
upon and for the benefit of the respective successors and assigns
of the parties hereto. Neither the Company nor the Assignor
shall amend or agree to amend, modify, waive, or otherwise alter
any of the terms or provisions of the Servicing Agreement which
amendment, modification, waiver or other alteration would in any
way affect the Mortgage Loans without the prior written consent of
the Trustee.
Indemnity by the Company to the
Trust:
6.
The Company hereby agrees to indemnify
and hold harmless the Assignor, the Assignee and the Trust
(collectively the “ Indemnified Parties ”) from
and against any and all losses, claims, expenses, damages or
liabilities to which the Indemnified Parties, their respective
officers or directors and any such controlling person may become
subject, as and when such losses, claims, expenses, damages or
liabilities are incurred, insofar as such losses, claims, expenses,
damages or liabilities (or actions in respect thereof) arise out of
or are based upon any breach of the representation and warranty set
forth in the Servicing Agreement to the extent that such breach
relates to the origination and servicing of Mortgage Loans in
compliance with the Georgia Fair Lending Act.
Modification of the Servicing
Agreement
7.
Only insofar as it relates to the
Mortgage Loans, the parties hereto hereby amend the Servicing
Agreement as follows:
(i)
The following paragraph is added
immediately following the last paragraph of Section 11.04 of
Exhibit 9 to the Servicing Agreement (the “Servicing
Addendum”):
“Custodial Accounts shall be
Eligible Accounts and funds on deposit in the Custodial Account
shall only be invested in Permitted Investments.”
(ii)
The definition of Eligible Account is
hereby deleted in its entirety and replaced by the
following:
Eligible Account: Any of (i) an
account or accounts maintained with a federal or state chartered
depository institution or trust company the short-term unsecured
debt obligations of which (or, in the case of a depository
institution or trust company that is the principal subsi
