|
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT (this “ Agreement ”), dated as of
May 15, 2007, among UBS Real Estate Securities Inc., a Delaware
corporation formerly known as UBS Warburg Real Estate Securities
Inc. (“ Assignor ”), Mortgage Asset
Securitization Transactions, Inc. (“ Assignee
”), U.S. Bank National Association, as trustee (the
“Trustee”) of MASTR Adjustable Rate Mortgages Trust
2007-3 (the “Trust”), Countrywide Home Loans
Servicing LP (the “ Company ”) and
Countrywide Home Loans, Inc. (“ CHL ”):
For good and valuable consideration the receipt
and sufficiency of which hereby are acknowledged, and of the
promises and mutual covenants herein contained, the parties
hereto hereby agree as follows:
1.
a.
On and as of the date hereof, the Assignor
hereby conveys, sells, grants, transfers and assigns to the
Assignee all of the right, title, interest and obligations of
the Assignor (other than those rights specifically retained by
the Assignor pursuant to this Agreement and those obligations
that arise prior to the date hereof) 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 Assignor’s rights
relating to the servicing provisions as they relate to the
Mortgage Loans (as specified in Section 1(c) below), that
certain Mortgage Loan Purchase and Servicing Agreement, dated as
of November 1, 2001, as amended by the Amended and Restated
Amendment Reg AB, dated as of March 1, 2006, and any other
related amendments thereto (together, the “ Servicing
Agreement ”) each between the Assignor and CHL.
The servicing rights and obligations of CHL under the
Servicing Agreement, with respect to the Mortgage Loans, have
been assigned by CHL to the Company, as more specifically
described in Section 5 below. For purposes of this
Agreement, the term “Servicing Agreement” includes
the related purchase confirmation, any separate bill of sale,
assignment and conveyance or other instrument pursuant to which
CHL 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 Assignor’s
rights relating to the servicing provisions of the Servicing
Agreement with respect to the Mortgage Loans (including without
limitation, the representations and warranties made by CHL and
the document delivery requirements of CHL 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.
Representations and Warranties of the Company and CHL:
2.
CHL and the Company, as delineated below,
warrant and represent to, and covenant with, the Assignor and
the Assignee as of the date hereof:
a.
Attached hereto as Exhibit B is a copy of the
servicing provisions of the Servicing Agreement, which agreement
is in full force and effect as of the date hereof, except as
otherwise provided herein. Neither CHL nor the Company has
waived or agreed to any waiver under, or agreed to any amendment
or other modification of the Servicing Agreement in any material
respect. Neither CHL nor the Company has any knowledge of, and
has not received notice of, any waivers under or amendments or
other modifications of, or assignments of rights or obligations
under the Servicing Agreement (other than the assignment of
rights as contemplated herein and the assignment of the
servicing rights and obligations under the Servicing Agreement
from CHL to the Company pursuant to an assignment agreement
dated November 1, 2001), nor has any notice of termination been
given thereunder;
b.
Pursuant to Section 12 of the Servicing
Agreement, CHL hereby represents and warrants, for the benefit
of the Assignor, the Assignee and the Trust, that the
representations and warranties set forth in Section 7.01 of the
Servicing Agreement, except with respect to Section 7.01 (ix),
are true and correct in all material respects on the date hereof
as if such representations and warranties were made on the date
hereof and the Company represents and warrants to the Assignee
and the Trust, that as of the date hereof the Company has
serviced the Mortgage Loans in accordance with the Servicing
Agreement;
c.
The Company and CHL 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 service the Mortgage Loans and otherwise to perform its
obligations under the Servicing Agreement;
d.
Each of the Company and CHL has full 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 each of the
Company’s and CHL’s business and will not conflict
with, or result in a material breach of, any of the terms,
conditions or provisions of each of the Company’s and
CHL’s respective organizational documents or any legal
restriction, or any material agreement or instrument to which
each of the Company and CHL 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 each of the Company or CHL or
its property is subject. The execution, delivery and performance
by each of the Company and CHL of this Agreement and the
consummation by it of the transactions contemplated hereby, have
been duly authorized by all necessary action on part of the
Company and CHL. This Agreement has been duly executed and
delivered by each of the Company and CHL, 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 and CHL, enforceable against the
Company and CHL 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 each of the Company
and CHL in connection with the execution, delivery or
performance by each of the Company and CHL 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;
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;
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 MASTR Adjustable Rate
Mortgages Trust 2007-3 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;
i.
The Company is an approved servicer for FNMA or
FHLMC in good standing and is a mortgagee approved by the
Secretary of Housing and Urban Development (“ HUD
”). No event has occurred, including but not
limited to a change in insurance coverage, which would make the
Company unable to comply with FNMA, FHLMC or HUD eligibility
requirements or which would require notification to FNMA, FHLMC
or HUD; and
j.
The Company does not believe, nor does it have
any reason or cause to believe, that it cannot perform each and
every covenant contained in this Agreement or the Servicing
Agreement.
Representations and Warranties of the Assignor
3.
The Assignor warrants and represents to, and
covenants with, CHL, the Company and the Assignee as of the date
hereof:
a.
The Assignor is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has all requisite
corporate power and authority to acquire, own and transfer the
Mortgage Loans;
b.
The Assignor has full corporate power and
authority to execute, deliver and perform 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 of the Assignor of this Agreement, and the
consummation by it of the transactions contemplated hereby, have
been duly authorized by all necessary corporate action of the
Assignor. This Agreement has been fully and duly executed
and delivered by the Assignor and constitutes the valid and
legally binding obligation of the Assignor enforceable against
the Assignor in accordance with its respective terms;
c.
There is no action, suit, proceeding,
investigation or litigation pending or, to the Assignor’s
knowledge, threatened, which either in any instance or in the
aggregate, if determined adversely to the Assignor, would
adversely affect (i) the sale of the Mortgage Loans to the
Assignee, (ii) the execution, delivery or enforceability of this
Agreement, or (iii) the Assignor’s ability to perform its
obligations under this Agreement or the Servicing Agreement, as
applicable;
d.
The Assignor is the lawful owner of the Mortgage
Loans with the full right to transfer the Mortgage Loans and any
and all of its interests, rights and obligations under the
Servicing Agreement (as contemplated by this Agreement) free and
clear from any and all claims and encumbrances whatsoever 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 contemplated by this Agreement) with
respect to the Mortgage Loans, free and clear of all liens,
claims and encumbrances; and
e.
The Assignor has not waived or agreed to any
waiver under, or agreed to any amendment or other modification
of, the Servicing Agreement or the Mortgage Loans, including
without limitation the transfer of the servicing obligations
under the Servicing Agreement. The Assignor has no
knowledge of, and has not received notice of, any waivers under
or amendments or other modifications of, or assignments of
rights or obligations under, the Servicing Agreement or the
Mortgage Loans.
Recognition by the Company of the Trustee and the Trust
Administrator:
4.
The Company hereby recognizes that the Mortgage
Loans will be transferred by the Assignee to the Trustee for the
Trust in a securitization transaction pursuant to a Pooling and
Servicing Agreement, dated as of April 1, 2007 (the “
Pooling Agreement ”), among the Assignee, the
Assignor, the Trustee and Wells Fargo Bank, N.A. (“
Wells Fargo ”), as master servicer (the “
Master Servicer ”), trust administrator (the
“ Trust Administrator ”), custodian (the
“Custodian”) and credit risk manager. From and
after the date hereof, the Company and the Trustee acknowledge
and agree that (A) the Trustee will be the owner of the
Mortgage Loans on behalf of MASTR Adjustable Rate Mortgages
Trust 2007-3 (the “ Trust ”), and Wells
Fargo, 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 pursuant to this Agreement and the Servicing
Agreement insofar as they relate to the Mortgage Loans, (C) the
Trustee, on behalf of the Trust, agrees to assume all
obligations of the “Purchaser” under this Agreement
and the Servicing Agreement with respect to the Mortgage Loans
and (D) the Mortgage Loans will be part of a “real estate
mortgage investment conduit” within the meaning of Section
860D of the Code (“ 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 understood that the Company shall not be
obligated to defend and indemnify and hold harmless the Master
Servicer, the Trustee, the Assignor and the Assignee 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 Company which were taken or omitted upon the instruction or
direction of the Master Servicer or Trustee, as applicable, or
(ii) the failure of the Master Servicer or the Trustee, as
applicable, to perform the obligations of the Assignor with
respect to the servicing provisions of the Servicing Agreement.
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, CHL, the Assignor, the
Assignee nor the Trustee 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,
except by an instrument in writing signed by the Company, CHL
and the Trustee.
5.
CHL Assignment and Guarantee.
a.
CHL and the Company hereby represent
and warrant that, pursuant to Section 24 of the Servicing
Agreement, CHL has assigned, with respect to the Mortgage Loans,
its rights and obligations as servicer under the Servicing
Agreement to the Company pursuant to an assignment agreement
dated November 1, 2001, as the same may be amended or
supplemented from time to time (the “ CHL
Assignment ”). The Company hereby represents and
warrants that, pursuant to the CHL Assignment, it is currently
obligated to perform all of the duties and obligations and may
exercise any of the rights of the servicer under the Servicing
Agreement.
b.
Pursuant to Section 24 of the Servicing
Agreement, CHL hereby guarantees, with respect to the Mortgage
Loans, all of the obligations (including, without limitation,
payment and performance obligations) of the Company as servicer
under the Servicing Agreement.
c.
CHL and the Company hereby agree that the
Trustee and the Master Servicer may rely on this Agreement as
sufficient evidence of the Company’s role as Servicer
under the Servicing Agreement by virtue of the CHL Assignment
and may (without production of the CHL Assignment) look solely
to this Agreement and the Servicing Agreement to enforce the
servicing obligations of the Company under the Servicing
Agreement and the guarantee obligations of CHL under clause (b)
of this Section.
d.
Each of CHL and the Company hereby acknowledge
and agree that Assignor and Assignee have each entered into this
Agreement in reliance on the provisions of this Section 5, and
each of CHL and the Company agree that it is estopped from
asserting the (i) non-existence or invalidity of, either the CHL
Assignment or CHL’s guaranty under clause (b) of this
Section, (ii) the inconsistency of this Agreement with the CHL
Assignment, or any other guaranty by CHL of the Company’s
obligations under the Servicing Agreement that may exist, or
(iii) the unenforceability of the CHL Assignment or CHL’s
guaranty under clause (b) of this Section, as a defense to such
party’s performance under this Agreement, the Servicing
Agreement or the CHL Assignment.
Modification of the Servicing Agreement
6.
Only insofar as it relates to the Mortgage
Loans, the Company and the Assignor hereby amend the Servicing
Agreement as follows:
(i)
The following paragraph is added immediately
following the last paragraph of Section 4.04 of Exhibit 9:
“Custodial Accounts shall be Eligible Accounts and funds on
deposit in the Custodial Account shall, if invested, 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 subsidiary of a holding
company, the debt obligations of such holding company) have one of
the two (2) highest short-term ratings of each Rating Agency at the
time any amounts are held on deposit therein (or in the case of
short-term ratings of Standard & Poor’s with respect to
amounts on deposit to be held in an account for no more than 30
days, short-term ratings of at least A-2), or (ii) an account
or accounts in a depository institution or trust company in which
such accounts are insured by the FDIC (to the limits established by
the FDIC) and the uninsured deposits in which accounts are
otherwise secured such that, as ev
|
