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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 o
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