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EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "
Agreement "), dated as of November 15, 2006, 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 2006-OA2 (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 Purchase Agreement, except with
respect to Section 7.01(xi), 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 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;
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 October 1, 2006 (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 ") and as a custodian (the "Custodian").
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 2006-OA2 (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 t
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