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EXECUTION COPY
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
This is an Assignment, Assumption and Recognition Agreement (this
"Agreement") made as of May 30, 2006 (the "Closing Date"), among UBS Real Estate
Securities Inc. (the "Assignor"), Bank of America, National Association (the
"Assignee") and National City Mortgage Co. (the "Company").
In consideration of the mutual promises contained herein, the parties
hereto agree that the Assignor shall assign to the Assignee the mortgage loans
(the "Mortgage Loans") listed on Attachment 1 hereto in accordance with the
terms of this Agreement, which are currently serviced by the Company for the
benefit of the Assignor, pursuant to that certain Second Amended and Restated
Master Seller's Warranties and Servicing Agreement, dated as of October 1, 2001,
as amended and restated to and including May 1, 2004, between the Assignor and
the Company (as amended, modified or supplemented as of the date hereto, the
"Purchase and Servicing Agreement"). Capitalized terms used herein but not
defined shall have the meanings ascribed to them in the Purchase and Servicing
Agreement.
Assignment and Assumption
1. The Assignor hereby grants, transfers and assigns to the Assignee
all of the right, title and interest of the Assignor in the Mortgage Loans and,
as to the extent of the Mortgage Loans, all of its right, title and interest in,
to and under the Purchase and Servicing Agreement and the Assignment and
Conveyances (collectively, the "Assigned Agreements"), dated as of May 10, 2006
(each, an "Original Closing Date"). The Assignor specifically reserves and does
not assign to the Assignee any right, title and interest in, to or under any
mortgage loans subject to the Purchase and Servicing Agreement other than those
set forth on Attachment 1.
2. Simultaneously with the execution of this Agreement, on the Closing
Date, the Assignee shall pay to the Assignor for each Mortgage Loan the purchase
price as calculated pursuant to the trade confirmation, dated as of April 18,
2006 (the "Trade Confirmation"), by and between the Assignee and the Assignor.
The Assignee shall pay the purchase price payable under the Trade Confirmation
by wire transfer of immediately available funds to the account specified by the
Assignor. The Assignee shall be entitled to (i) all scheduled payments of
principal due on the Mortgage Loans after May 1, 2006 (the "Mortgage Loans
Cut-off Date"), (ii) all other recoveries of principal collected after the
Mortgage Loans Cut-off Date (provided, however, that all scheduled payments of
principal due on or before the Mortgage Loans Cut-off Date and collected after
the Mortgage Loans Cut-off Date shall belong to the Company) and (iii) all
payments of interest on the Mortgage Loans minus that portion of any such
interest payment that is allocable to the period prior to the Mortgage Loans
Cut-off Date.
The Assignor shall deliver the Mortgage Loan Schedule and the electronic
data file related to the Mortgage Loans to the Assignee at least three (3)
Business Days prior to the Closing Date. Upon the sale of the Mortgage Loans,
the ownership of each Mortgage Note, the related Mortgage and the related
Mortgage File and Servicing File shall vest immediately in the
Assignee. Notwithstanding anything to the contrary set forth in the Trade
Confirmation, the Assignor will, with respect to each Mortgage Loan, deliver, or
cause to be delivered, the Mortgage Loan Documents to U.S. Bank National
Association (the "Custodian") no later than five (5) Business Days prior to the
Closing Date.
The Company shall be responsible for recording the assignments of
Mortgage, if necessary, in accordance with Accepted Servicing Practices and the
Purchase and Servicing Agreement. The Assignee shall be responsible for the
initial and on-going fees and expenses of the Custodian.
Representations, Warranties and Covenants
3. The Assignor warrants and represents to, and covenants with, the
Assignee as of the date hereof that:
(a) The Assignor 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 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 governing documents 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 action on the 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, 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. The
execution, delivery and performance by the Assignor of this Agreement and
the consummation of the transactions contemplated hereby do not require
the consent or approval of, the giving of notice to, the registration
with, or the taking of any other action in respect of, any state, federal
or other governmental authority or agency, except such as has been
obtained, given, effected or taken prior to the date hereof. There are no
actions, suits or proceedings pending or, to the knowledge of the
Assignor, threatened, before or by any court, administrative agency,
arbitrator or governmental body (i) with respect to any of the
transactions contemplated by this Agreement or (ii) with respect to any
other matter that in the judgment of the Assignor will be determined
adversely to the Assignor and, if determined adversely to the Assignor,
will materially and adversely affect its ability to perform its
obligations under this Agreement;
(b) Attached hereto as Attachment 2 is a true and accurate copy of
each of the Assigned Agreements, and each of the Assigned Agreements is in
full force and effect as
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of the date hereof and its provisions have not been waived, amended or
modified in any respect, nor has any notice of termination been given
thereunder;
(c) 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 Purchase and Servicing
Agreement as they relate to the Mortgage Loans, free from any and all
encumbrances, liens, pledges, participation interests, claims or security
interests of any nature encumbering the Mortgage Loans. Except for the
sale to the Assignee, the Assignor has not assigned or pledged any
Mortgage Note related to any Mortgage Loan or the related Mortgage or any
interest or participation therein;
(d) The Assignor has not satisfied, canceled, or subordinated in
whole or in part, or rescinded the Mortgage related to any Mortgage Loan,
and the Assignor has not released the Mortgaged Property from the lien of
the Mortgage related to any Mortgage Loan, in whole or in part, nor has
the Assignor executed an instrument that would effect any such release,
cancellation, subordination, or rescission;
(e) The Assignor has not received notice of, and has no knowledge
of, any offsets, counterclaims or other defenses available to the Company
with respect to the Mortgage Loans or the Purchase and Servicing
Agreement;
(f) The Assignor has not waived or agreed to any amendment or
other modification of, the Purchase and Servicing Agreement. The Assignor
has no knowledge of, and has not received notice of, any waivers under or
any amendments or other modifications of, or assignment of rights or
obligations under, the Purchase and Servicing Agreement; and
(g) No trade confirmation, Assignment and Conveyance or other
document related to the transfer of the Mortgage Loans executed by and
between the Assignor and the Company and related to one or more Mortgage
Loans includes any restriction, condition or other provision that
materially affects the Company's obligations with regard to a
Securitization Transaction or Agency Transfer, other than those
restrictions, conditions and provisions set forth in Article VII or
Article XIII of the Purchase and Servicing Agreement.
4. The Assignee warrants and represents to, and covenants with, the
Assignor and the Company as of the date hereof that:
(a) The Assignee agrees to be bound as "Purchaser" by all of the
terms, covenants and conditions of the Purchase and Servicing Agreement
solely with respect to the Mortgage Loans, 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,
solely with respect to such Mortgage Loans; and
(b) The Assignee 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 the Assignee's
business and will not conflict with, or result in a breach of, any
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of the terms, conditions or provisions of the Assignee's governing
documents or any legal restriction, or any material agreement or
instrument to which the 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 the Assignee or its property is subject. 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 action on the part of the Assignee. This
Agreement has been duly executed and delivered by the Assignee and, upon
the due authorization, execution and delivery by the Assignor, will
constitute the valid and legally binding obligation of the Assignee
enforceable against the 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. The execution, delivery and performance by the Assignee
of this Agreement and the consummation of the transactions contemplated
hereby do not require the consent or approval of, the giving of notice to,
the registration with, or the taking of any other action in respect of,
any state, federal or other governmental authority or agency, except such
as has been obtained, given, effected or taken prior to the date hereof.
There are no actions, suits or proceedings pending or, to the knowledge of
the Assignee, threatened, before or by any court, administrative agency,
arbitrator or governmental body (i) with respect to any of the
transactions contemplated by this Agreement or (ii) with respect to any
other matter that in the judgment of the Assignee will be determined
adversely to the Assignee and, if determined adversely to the Assignee,
will materially and adversely affect its ability to perform its
obligations under this Agreement.
5. The Company warrants and represents to, and covenants with, the
Assignor and the Assignee as of the date hereof that:
(a) The information set forth in the Mortgage Loan Schedule
attached hereto as Attachment 1 and the information contained on the
related electronic data file delivered to the Assignee by the Assignor is
complete, true and correct;
(b) Attached hereto as Attachment 2 is a true and accurate copy of
the each of the Assigned Agreements, and each of the Assigned Agreements
is in full force and effect as of the date hereof and their provisions
have not been waived, amended or modified in any respect, nor has any
notice of termination been given thereunder;
(c) Pursuant to Section 7.01(c) of the Purchase and Servicing
Agreement, the Company hereby restates, as of the date hereof, the
representations and warranties set forth in Section 3.01 and Section 3.02
of the Purchase and Servicing Agreement with respect to the Company and
the Mortgage Loans, as if such representations and warranties were set
forth herein in full. For purposes of making the representations and
warranties contemplated in the foregoing sentence, each reference in
Section 3.01 and Section 3.02 of the Purchase and Servicing Agreement (i)
to the "Cut-off Date" shall be deemed to be a reference to the Mortgage
Loans Cut-off Date, (ii) to the "Mortgage Loan Schedule" shall be deemed
to be a reference to Attachment 1 hereto, (iii) to the "Closing Date"
shall be deemed to be a reference to the date of this Agreement, and (iv)
to the
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"Custodian" shall be deemed a reference to U.S. Bank National Association.
The Assignee shall be entitled to all of the rights and benefits provided
under the Purchase and Servicing Agreement in the event that any such
representation and warranty is not true and correct as of the Closing Date
or the related Original Closing Date;
(d) The Company has serviced the Mortgage Loans in accordance with
the terms of the Purchase and Servicing Agreement, provided accurate
statements pursuant to Section 5.02 thereof and otherwise complied with
all covenants and obligations thereunder;
(e) The Company has taken no action, or omitted to take any
required action the omission of, which would have the effect of impairing
any mortgage insurance or guarantee on the Mortgage Loans; and
(f) No trade confirmation, Assignment and Conveyance or other
document related to the transfer of the Mortgage Loans executed by and
between the Assignor and the Company and related to one or more Mortgage
Loans includes any restriction, condition or other provision that affects
the Company's obligations with regard to a Securitization Transaction or
Agency Transfer, as set forth in Article VII of the Purchase and Servicing
Agreement.
(g) Neither the origination of any Mortgage Loan, nor the purchase
thereof by the Assignee, will cause such Mortgage Loan or the Assignee to
fail to comply with the OCC Guidelines Establishing Standards for
Residential Mortgage Lending Practices.
Repurchase of Mortgage Loans
6. The Assignor and the Assignee understand and agree that:
(a) Upon the discovery by the Assignor or the Assignee and its
assigns of a breach of any representation, warranty, or covenant under
this Agreement, the party discovering such breach shall give prompt
written notice to the other parties to this Agreement. Upon discovery or
notice of any breach by the Assignor of any representation, warranty, or
covenant under this Agreement that materially and adversely affects the
value of any Mortgage Loan or the interest of the Assignee therein (it
being understood that any such defect or breach shall be deemed to have
materially and adversely affected the value of the related Mortgage Loan
if the Assignee incurs a loss solely as a result of such defect or
breach), the Assignee promptly shall request that the Assignor cure such
breach and, if the Assignor does not cure such breach in all material
respects within sixty (60) days from the date on which it is notified of
the breach, the Assignor shall, at the Assignee's option, repurchase the
Mortgage Loan in the same manner set forth in Section 3.03 of the Purchase
and Servicing Agreement.
(b) In the event the Company has breached a representation or
warranty under the Purchase and Servicing Agreement that is substantially
identical to a representation or warranty by the Assignor hereunder, the
Assignee shall first proceed against the Company. If the Company does not
within sixty (60) days after notification of the breach, take steps to
cure such breach (which may include certifying to progress made
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and requesting an extension of the time to cure such breach, as permitted
under the Purchase and Servicing Agreement) or purchase the Mortgage Loan
in the same manner as set forth in Section 3.03 of the Purchase and
Servicing Agreement, the Assignee shall be entitled to enforce the
obligations of the Assignor hereunder to cure such breach or to purchase
the Mortgage Loan from the Assignee except to the extent such breach arose
prior to the Original Closing Date. In such event, the Assignor shall
succeed to the rights of the Assignee to enforce the obligations of the
Company to cure such breach or repurchase such Mortgage Loan under the
terms of the Purchase and Servicing Agreement with respect to such
Mortgage Loan.
(c) Except as specifically set forth herein, the Assignee shall
have no responsibility to enforce any provision of the Assigned
Agreements, to oversee compliance thereof, or to take notice of any breach
or default thereof.
Recognition of the Assignee
7. From and after the date hereof, the Company shall recognize the
Assignee as owner of the Mortgage Loans and will service the Mortgage Loans for,
and provide all information and reports to, the Assignee pursuant to Articles I,
IV, V, VI, VII, and VIII of that certain Master Seller's Warranties and
Servicing Agreement, dated as of September 1, 2003 (as amended, restated,
supplemented or otherwise modified from time to time, the "Servicing
Agreement"), between the Assignee and the Company, as well as that Certain
Regulation AB Compliance Addendum to the Master Seller's Warranties and
Servicing Agreement, dated as of January 1, 2006, between the Assignee and the
Company.
Modification of the Purchase and Servicing Agreement
8. The Assignee and the Company hereby modify the Purchase and
Servicing Agreement with respect to the Mortgage Loans as follows:
(a) Article I of the Purchase and Servicing Agreement is
modified as follows:
(i) The following defined terms are inserted in
alphabetical order into Article I:
"Consumer Information: Information
including, but not limited to, all personal
information about a Mortgagor that is supplied to
the Company by or on behalf of such Mortgagor."
"Manufactured Home: A single family
residential unit that is constructed in a factory
in sections in accordance with the Federal
Manufactured Home Construction and Safety
Standards adopted on July 15, 1976, by the
Department of Housing and Urban Development ("HUD
Code"), as amended in 2000, which preempts state
and local building codes. Each unit is identified
by the presence of a HUD Plate/Compliance
Certificate label. The sections are
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then transported to the site and joined together
and affixed to a pre-built permanent foundation
(which satisfies the manufacturer's requirements
and all state, county, and local building codes
and regulations). The manufactured home is built
on a non-removable, permanent frame chassis that
supports the complete unit of walls, floors, and
roof. The underneath part of the home may have
running gear (wheels, axles, and brakes) that
enable it to be transported to the permanent site.
The wheels and hitch are removed prior to
anchoring the unit to the permanent foundation.
The manufactured home must be classified as real
estate and taxed accordingly. The permanent
foundation may be on land owned by the mortgager
or may be on leased land."
(b) Section 3.02 of the Purchase and Servicing Agreement is
modified as follows:
(i) Subsection (i) thereof is modified by (1) deleting in
its entirety therefrom the language "or leasehold" and (2) by
deleting in its entirety therefrom the language "manufactured
dwellings" and by replacing such language with "Manufactured Homes".
(ii) Subsection (jj) is modified by deleting it in its
entirety and replacing such subsection with the following:
"Servicemembers Civil Relief Act. The
Mortgagor has not notified the Company, and the
Company has no knowledge of any relief requested
by or allowed to the Mortgagor under the
Servicemembers Civil Relief Act, or any similar
state laws;"
(iii) Subsection (pp) is modified by deleting it in its
entirety and replacing such subsection with the following:
"No Mortgage Loan is (a) a "high cost" loan under the Home
Ownership and Equity Protection Act of 1994 as amended, (b) a
"high cost," "threshold," "covered," "predatory," "abusive,"
or similarly defined loan, including refinance loans, under
any other applicable state, federal or local law (or a
similarly classified loan using different terminology under a
law imposing heightened regulatory scrutiny or additional
legal liability for residential mortgage loans having high
interest rates, points and/or fees), provided that any
Mortgage Loan secured by a Mortgaged Property in Illinois
characterized as a "threshold" loan shall not be a "high cost"
loan unless it is characterized as "predatory" under
applicable local law, or (c) a "High Cost Loan" or "Covered
Loan" as defined in the S&P LEVELS(R) Glossary Version 5.7 (or
the now-current version thereof); the Company has implemented
and conducted compliance procedures to determine if
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each Mortgage Loan is "high-cost" home loan under the
applicable laws and performed a review of the disclosure
provided to the related Mortgagor in accordance with such laws
and the related Mortgage Note in order to determine that such
Mortgage Loan, if subject to any such law, does not violate
any such law;"
(iv) Subsection (uu) is modified by inserting immediately
prior to the semi-colon at the end thereof the language, "and a
minimum FICO score of 625".
(v) Subsection (xx) is modified by deleting it in its
entirety and replacing such subsection with the following:
"Leaseholds. No Mortgage Loan is secured
by a long-term residential lease;"
(vi) Subsection (ddd) is modified by inserting immediately
prior to the ";" at the end thereof the following:
". No Mortgage Loan originated after March
7, 2003 secured by property located in the State
of Georgia is classified as a "high cost home
loan" under the Georgia Fair Lending Act".
(vii) Subsection (uuu) is modified by deleting it is its
entirety and replacing such subsection with the following:
"No Arbitration Provisions. With respect
to any Mortgage Loan originated on or after August
1, 2004, neither the related Mortgage nor Mortgage
Note requires the Mortgagor to submit to
arbitration to resolve any dispute arising
thereunder or in connection with the origination
of such Mortgage Loan."
(viii) Section 3.02 is modified by deleting the word "and"
from the end of Subsection (xxx) thereof, deleting the period from
the end of Subsection (yyy) thereof and replacing such period with a
semi-colon and by inserting at the end of such section the following
new subsections:
"(zzz) Texas Refinance Loans. Article XVI,
Section 50(a)(6) of the Texas Constitution is not
applicable to the Mortgage Loan or the origination
thereof. If the Mortgage Loan was originated in
Texas, it is not a cash-out refinancing;
(aaaa) Pledged Asset Loans. No Mortgage
Loan is a "pledged asset" mortgage loan;
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(bbbb) Debt-to-Income Ratio. Each Mortgage
Loan has a debt-to-income ratio of less than or
equal to 60%; and
(cccc) High Principal Balance Loans. With
respect to each Mortgage Loan with an original
principal balance of $1 million or more, (a) the
related Mortgagor has a minimum FICO score of
greater than or equal to 700, (b) the LTV is less
than or equal to 70%, (c) the related Mortgagor
has a debt-to-income ratio of less than or equal
to 50%, (d) there is a reserve of no less than six
(6) months and (e) the related Mortgage File
includes (A) a full appraisal of the Mortgaged
Property and (B) full loan origination
documentation that includes income and asset
verification forms.
(c) Section 10.01 of the Purchase and Servicing Agreement is
modified by inserting as the first sentence of the second paragraph
thereof the following:
"If the Company obtains knowledge of an
Event of Default, the Company shall notify the
Purchaser."
(d) Section 11.02 of the Purchase and Servicing Agreement is
modified by deleting the second paragraph thereof in its entirety and
replacing such paragraph with the following:
"In the event the Purchaser terminates the
Company without cause with respect to some or all
of the Mortgage Loans, the Company shall be
entitled to receive, as liquidated damages, upon
the transfer of the servicing rights, an amount
equal to the fair market value of such servicing
rights based on the aggregate outstanding
principal amount of the Mortgage Loans as of the
termination date, plus all reasonable costs and
expenses incurred by the Company in managing the
transfer of the servicing. The fair market value
of the servicing rights shall be determined based
on the average of three bids made by experienced
evaluators unaffiliated to the Purchaser and the
Company and chosen as follows: one by the
Purchaser, one by the Company and one by mutual
agreement."
(e) Section 12.01 of the Purchase and Servicing Agreement is
modified as follows:
(i) The first paragraph of Section 12.01 is modified by
deleting each occurrence of the language "3.06" and replacing each
such occurrence with the language, "3.04".
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(ii) Section 12.01 is modified by inserting as the fourth
paragraph thereof the following:
"Unless the Company is terminated pursuant
to Section 11.02, and except as other wise
provided in Section 11.02, the Purchaser shall be
entitled to be reimbursed from the Company for all
costs associated with the transfer of servicing,
including, without limitation, any costs or
expenses associated with the complete transfer of
all servicing data and the completion, correction
or manipulation of such servicing data as may be
required by the Purchaser to correct any errors or
insufficiencies in the servicing data or otherwise
to enable the Purchaser to service the Mortgage
Loans properly and effectively."
(f) Article XII of the Purchase and Servicing Agreement is
modified by inserting at the end thereof the following new sections:
"Section 12.12 Confidential Information.
The Company shall keep confidential and shall not
divulge to any party, without the Purchaser's prior
written consent, the price paid by Purchaser for the
Mortgage Loans, except to the extent that it is
reasonable and necessary for the Company to do so in
working with legal counsel, auditors, taxing authorities
or other governmental agencies.
The Purchaser and the Company agree they (i) shall
comply with all applicable laws and regulations
regarding the privacy or security of Consumer
Information, (ii) shall not collect, create, use, store,
access, disclose or otherwise handle Consumer
Information in any manner inconsistent with any
applicable laws or regulations regarding the privacy or
security of Consumer Information, (iii) shall not
disclose Consumer Information to any affiliated or
non-affiliated third party except to enforce or preserve
its rights, as otherwise permitted or required by
applicable law (or by regulatory authorities having
jurisdiction in the premises) or, in the case of the
Company, at the specific written direction of the
Purchaser, (iv) shall maintain appropriate
administrative, technical and physical safeguards to
protect the security, confidentiality and integrity of
Consumer Information, including maintaining security
measures designed to meet the Interagency Guidelines
Establishing Standards for Safeguarding Consumer
Information published in final form on February 1, 2001,
66 Fed. Reg. 8616, and the rules promulgated thereunder
and (v) shall promptly notify the other party in writing
upon becoming aware of any actual breach and of any
suspected breach of this section. The Company shall
promptly
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provide the Purchaser's regulators information regarding
such security measures upon the reasonable request of
the Purchaser, which information shall include, but not
be limited to, any SAS 70 or similar independent audit
reports, summaries of test results or equivalent
measures taken by the Company with respect to its
security measures, as agreed upon by the parties. Each
party shall indemnify and defend the other party
against, and shall hold the other party harmless from,
any cost, expense, loss, claim or other liability that
such other party may suffer as a result of or in
connection with its failure to comply with or perform
the obligations set forth in this section. The
restrictions set forth herein shall survive the
termination of this Agreement.
Section 12.13 Intention of the Parties.
It is the intention of the parties that the Purchaser is
purchasing, and the Company is selling, the Mortgage
Loans and not a debt instrument of the Company or
another security. Accordingly, the parties hereto each
intend to treat the transaction for Federal income tax
purposes as a sale by the Company, and a purchase by the
Purchaser, of the Mortgage Loans. The Purchaser shall
have the right to review the Mortgage Loans and the
related Mortgage Loan Files to determine the
characteristics of the Mortgage Loans which shall affect
the Federal income tax consequences of owning the
Mortgage Loans and the Company shall cooperate with all
reasonable requests made by the Purchaser in the course
of such review. In the event, for any reason, any
transaction contemplated herein is construed by any
court or regulatory authority as a borrowing rather than
as a sale, the Company and the Purchaser intend that the
Purchaser or its assignee, as the case may be, shall
have a perfected first priority security interest in the
Mortgage Loans, the Custodial Account and the proceeds
of any and all of the foregoing (collectively, the
"Collateral"), free and clear of adverse claims. In such
case, the Company shall be deemed to have hereby granted
to the Purchaser or its assignee, as the case may be, a
first priority security interest in and lien upon the
Collateral, free and clear of adverse claims. In such
event, the Trade Confirmation and this Agreement shall
constitute a security agreement, the Custodian shall be
deemed to be an independent custodian for purposes of
perfection of the security interest granted to the
Purchaser or its assignee, as the case may be, and the
Purchaser or its assignee, as the case may be, shall
have all of the rights of a secured party under
applicable law.
Modification of the Servicing Agreement
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9. The Assignee and the Company hereby modify the Servicing Agreement
with respect to the Mortgage Loans, as follows:
(a) Article I of the Servicing Agreement is modified by deleting in its
entirety the definition of "Closing Date" and by replacing it with "May 30,
2006".
(b) Article I of the Servicing Agreement is modified by deleting in its
entirety the definition of "Cut-off Date" and by replacing it with "May 30,
2006".
(c) Section 8.01 of the Servicing Agreement is modified by inserting the
following as the new second paragraph therein:
"Upon request from the Purchaser, the Company shall
deliver no later than thirty (30) days after such
request any Mortgage File or document therein, or copies
thereof, to the Purchaser at the direction of the
Purchaser. The Purchaser shall return any originals of
documents delivered pursuant to this Section no later
than ten (10) days after receipt thereof. In the event
that the Company fails to make delivery of the requested
Mortgage File or document therein, or copies thereof, as
required under this Section, the Company shall
repurchase, pursuant to Section 3.03 of this Agreement,
the related Mortgage Loan within sixty (60) days of
receipt of a request to do so by the Purchaser."
Miscellaneous
10. All demands, notices and communications related to the Mortgage
Loans, the Purchase and Servicing Agreement and this Agreement shall be in
writing and shall be deemed to have been duly given if personally delivered or
mailed by registered mail, postage prepaid, as follows:
In the case of the Assignee,
Bank of America, National Association
NC1-027-21-04
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
In the case of the Assignor,
UBS Real Estate Securities Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
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Facsimile: (000) 000-0000
In the case of the Company,
National City Mortgage Co.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxx Xxxxxxxxxxxx
with a copy to:
National City Mortgage Co.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
with a copy to:
National City Mortgage Co.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: X. Xxxxxxx Case
11. Each party will pay any commissions it has incurred and the
reasonable fees of its attorneys in connection with the negotiations for,
documenting of and closing of the transactions contemplated by this Agreement.
12. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS, EXCEPT TO THE EXTENT PREEMPTED BY FEDERAL LAW.
13. No term or provision of this 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.
14. This Agreement shall inure to the benefit of the successors and
assigns of the parties hereto. Any entity into which the Assignor, the Assignee
or the Company may be merged or consolidated shall, without the requirement for
any further writing, be deemed the Assignor, the Assignee or the Company,
respectively, hereunder.
15. This Agreement shall survive the conveyances of the Mortgage Loans
as contemplated in this Agreement.
13
16. This 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.
17. In the event that any provision of this Agreement conflicts with any
provision of the Purchase and Servicing Agreement with respect to the Mortgage
Loans, the terms of this Agreement shall control.
[signature page to follow]
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
BANK OF AMERICA, NATIONAL
ASSOCIATION
Assignee
By: /s/ Xxxxx X. Good
------------------------------------
Name: Xxxxx X. Good
--------------------------------
Title: Vice President
--------------------------------
UBS REAL ESTATE SECURITIES INC.
Assignor
By: /s/ Xxxxxx Xxxxxx
------------------------------------
Name: Xxxxxx Xxxxxx
--------------------------------
Title: Associate Director
--------------------------------
NATIONAL CITY MORTGAGE CO.
Company
By: /s/ Xxxx Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxx Xxxxxxxx
--------------------------------
Title: Vice President
--------------------------------
[BANA-UBS (NatCity), May 2006]
ATTACHMENT 1
MORTGAGE LOAN SCHEDULE
Attachment 1A - Page 1
ATTACHMENT 2
PURCHASE AND SERVICING AGREEMENT
Attachment 3 - Page 1
