Exhibit 99.3
Execution Copy
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), dated as of
February 27, 2007, between Mortgage Asset Securitization Transactions, Inc.
(the "Depositor"), and Xxxxxx, Xxxx & Xxxxxxxx Mortgage Corp. (the "Company"
or the "Servicer"):
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. The Company warrants and represents to, and covenants with, the
Depositor as of the date hereof:
(a) The Company hereby restates as of the date hereof for the
benefit of the Depositor and the Trustee (as defined below), each of the
representations and warranties in Subsections 7.01 and 7.02 of the
Mortgage Loan Purchase and Servicing Agreement, dated as of February 1,
2007 (the "Servicing Agreement") with the same effect under such
Servicing Agreement as if such representations and warranties had been
made as of the date hereof, provided, however, that with respect to
those representations and warranties that relate to the delinquency of
the Mortgage Loans or condition of the Mortgaged Property (as defined in
the Servicing Agreement), the Company restates such representations and
warranties as of the Closing Date (as defined in the Servicing
Agreement);
(b) The Company hereby acknowledges and agrees that the remedies
available to the Depositor and the Trustee in connection with any breach
of the representations and warranties made by the Company set forth in
this Agreement shall be as set forth in Section 7.03 of the Servicing
Agreement as if they were set forth herein (including without limitation
the repurchase and indemnity obligations set forth therein);
(c) 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 this Agreement;
(d) The Company has full corporate power and authority to execute,
deliver and perform its obligations under this Agreement, and has full
power and authority to perform its obligations under this Agreement. The
execution by the Company of 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 has
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
Depositor, 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) There is no action, suit, proceeding or investigation pending
or 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
(g) 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 TBW
Mortgage-Backed Trust 2007-1 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 and the Trust Administrator
2. The Company hereby recognizes that the Mortgage Loans will be
transferred by the Depositor to The Bank of New York, as Trustee for the
holders of TBW Mortgage-Backed Trust 2007-1, TBW Mortgage-Backed Pass-Through
Certificates, Series 2007-1 (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 February 1, 2007 (the "Pooling Agreement"), among the Depositor,
the Trustee, UBS Real Estate Securities Inc., as transferor and Xxxxx Fargo
Bank, N.A., as master servicer and trust administrator (the "Master
Servicer"). From and after the date hereof, the Company acknowledges and
agrees that (A) the Trustee will be the owner of the Mortgage Loans on behalf
of TBW Mortgage-Backed Trust 2007-1 (the "Trust"), and Xxxxx Fargo Bank, N.A.,
will be the Master Servicer and Trust Administrator of the Mortgage Loans, (B)
the Company shall look solely to the Trustee and the Trust Administrator, on
behalf of the Trust, for performance of any obligations of the Depositor
insofar as they relate to the Mortgage Loans and (C) 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
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income from foreclosure property" as set forth in Section 860G(c) of the
Code). It is the intention of the Company and the Depositor 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
Depositor 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 and the Trust
Administrator.
Modification of the Servicing Agreement
3. 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:
"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
subsidiary of a holding company, the debt obligations of such holding
company) have either (a) a rating of at least "A-2" by S&P at the time
any amounts are held on deposit therein, if the amounts on deposit are
to be held in the account for no more than 30 days and are not intended
to be used as credit enhancement (provided, that if such rating falls
below "A-2" by S&P, funds in such account shall immediately be
transferred to an otherwise Eligible Account) or (b) the highest short
term ratings of each Rating Agency at the time any amounts are held on
deposit therein, if the amounts on deposit are to be held in the account
for more than 30 days or are intended to be used as credit enhancement,
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 evidenced by an Opinion of Counsel
delivered to the Trustee, the Trust Administrator and to each Rating
Agency, the Certificateholders have a claim with respect to the funds in
such account or a perfected first priority security interest against any
collateral (which shall be limited to Permitted Investments) securing
such funds that is superior to claims of any other depositors or
creditors of the depository institution or trust company in which such
account is maintained, (iii) a non interest bearing segregated trust
account or accounts maintained with (a) the trust department of a
federal or state chartered depository institution or (b) a trust
company, acting in its fiduciary capacity or (iv) any other account
acceptable to each Rating Agency or (iv) a non-interest bearing account
or accounts maintained with Colonial Bank, N.A., titled as "Xxxxxx, Bean
& Xxxxxxxx Mortgage Corp., in Trust for The Bank of New York, as Trustee
for TBW Mortgage-
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Backed Trust, Series 2007-1"; provided that amounts held in such account
are wired to Xxxxx Fargo Bank, N.A. by no later than noon (Eastern Time)
on the first Business Day and the 15th day (or if the 15th is not a
Business Day, the last Business Day prior to the 15th) of each calendar
month during which Colonial Bank, N.A. maintains such account. Eligible
Accounts may bear interest, and may include, if otherwise qualified
under this definition, accounts maintained with the Trustee.
(iii) The definition of "Escrow Account" is hereby deleted
in its entirety and replaced by the following:
Escrow Account: The separate trust account or accounts created and
maintained pursuant to this Agreement, each of which shall be an
Eligible Account, and each of which shall be entitled "Xxxxxx, Xxxx &
Xxxxxxxx Mortgage Corp., in Trust for The Bank of New York, as Trustee
for TBW Mortgage-Backed Trust, Series 2007-1", established and
maintained at Colonial Bank, N.A. as of the Closing Date, and to be
transferred periodically to Xxxxx Fargo Bank, N.A., in its capacity as
Trust Administrator on behalf of the TBW Mortgage-Backed Trust 2007-1,
as provided in subparagraph (iv) of the definition of "Eligible
Account", or at any other financial institution acceptable to the
Purchaser.
(iv) The following definition is added to Section 1 of the
Servicing Agreement immediately following the definition of
"Periodic Rate Cap":
Permitted Investments: At any time, any one or more of the
following obligations and securities:
(a) obligations of the United States or any agency thereof,
provided such obligations are backed by the full faith and credit of the
United States;
(b) general obligations of or obligations guaranteed by any state
of the United States or the District of Columbia receiving the highest
long term debt rating of each Rating Agency, or such lower rating as
will not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by either Rating Agency;
(c) commercial or finance company paper which is then receiving
the highest commercial or finance company paper rating of each Rating
Agency, or such lower rating as will not result in the downgrading or
withdrawal of the ratings then assigned to the Certificates by either
Rating Agency;
(d) certificates of deposit, demand or time deposits, or bankers'
acceptances issued by any depository institution or trust company
incorporated under the laws of the United States or of any state thereof
and subject to supervision and examination by federal and/or state
banking authorities, provided that the commercial paper and/or long term
unsecured debt obligations of such depository institution or trust
company are then rated in one of the two highest long term and the
highest short term ratings of each Rating Agency for such securities, or
such lower ratings as will not result in the downgrading or withdrawal
of the rating then assigned to the Certificates by either Rating Agency;
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(e) demand or time deposits or certificates of deposit issued by
any bank or trust company or savings institution to the extent that such
deposits are fully insured by the FDIC and are then rated in the highest
long term and the highest short term ratings of each Rating Agency for
such securities, or such lower ratings as will not result in the
downgrading or withdrawal of the ratings then assigned to the
Certificates by either Rating Agency;
(f) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation containing, at the time of the
issuance of such agreements, such terms and conditions as will not
result in the downgrading or withdrawal of the rating then assigned to
the Certificates by either Rating Agency;
(g) repurchase obligations with respect to any security described
in clauses (a) and (b) above, in either case entered into with a
depository institution or trust company (acting as principal) described
in clause (d) above;
(h) securities (other than stripped bonds, stripped coupons or
instruments sold at a purchase price in excess of 115% of the face
amount thereof) bearing interest or sold at a discount issued by any
corporation incorporated under the laws of the United States or any
state thereof which, at the time of such investment, have the highest
rating of each Rating Agency, or such lower rating as will not result in
the downgrading or withdrawal of the rating then assigned to the
Certificates by either Rating Agency, as evidenced by a signed writing
delivered by each Rating Agency;
(i) units of a taxable money market portfolio having the highest
rating assigned by each Rating Agency and restricted to obligations
issued or guaranteed by the United States of America or entities whose
obligations are backed by the full faith and credit of the United States
of America and repurchase agreements collateralized by such obligations;
(j) any mutual fund, money market fund, common trust fund or other
pooled investment vehicle, the assets of which are limited to
instruments that otherwise would constitute Permitted Investments
hereunder, including any such fund that is managed by the Trustee or
Master Servicer or any affiliate of the Trustee or Master Servicer or
for which the Trustee or Master Servicer or any affiliate of the Trustee
or Master Servicer acts as an adviser as long as such fund is rated in
at least the highest rating category by each Rating Agency (if so rated
by such Rating Agency); and
(k) such other investments bearing interest or sold at a discount
acceptable to each Rating Agency as will not result in the downgrading
or withdrawal of the rating then assigned to the Certificates by either
Rating Agency, as evidenced by a signed writing delivered by each Rating
Agency;
provided that no such instrument shall be a Permitted Investment if such
instrument evidences the right to receive interest only payments with
respect to the obligations underlying such instrument.
Notices
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4. All demands, notices and communications related to the Mortgage Loans
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 Depositor,
Mortgage Asset Securitization Transactions, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal Department
In the case of the Company,
Xxxxxx, Bean & Xxxxxxxx Mortgage Corp.
000 XX 0xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attn: Chief Executive Officer
With a copy to:
Xxxxxxx X. Xxxxxxxx, Esq.
General Counsel
0000 Xxxxx Xxxxxxx Xxxx, Xx. 000
Xxxxxxxx, Xxxxxxx 00000
Miscellaneous
5. Distributions shall be made by wire transfer of immediately available
funds to Xxxxx Fargo Bank, N.A., ABA #000-000-000, for credit to SAS Clearing;
Account: 0000000000, for further credit to account #00000000 TBW 2007-1.
Applicable statements should be mailed to Xxxxx Fargo Bank, N.A., 0000 Xxx
Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx, 00000-0000, attn: Client Manager, TBW
2007-1.
6. Each party will pay any commissions it has incurred and the Depositor
shall pay the fees of its attorneys and the reasonable fees of the attorneys
of the Company in connection with the negotiations for, documenting of and
closing of the transactions contemplated by this Agreement.
7. This Agreement shall be construed in accordance with the laws of the
State of New York, without regard to conflicts of law principles other than
Sections 5-1401 and 5-1402 of the New York General Obligations Law, and the
obligations, rights and remedies of the parties hereunder shall be determined
in accordance with such laws.
8. 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, with prior
consent of the Trustee.
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9. This Agreement shall inure to the benefit of (i) the successors and
assigns of the parties hereto and (ii) the Trustee. Any entity into which
Depositor or Company may be merged or consolidated shall, without the
requirement for any further writing, be deemed Depositor or Company,
respectively, hereunder.
10. Each of this Agreement and the Servicing Agreement shall survive the
conveyance of the Mortgage Loans and the assignment of the Servicing Agreement
to the extent of the Mortgage Loans by Depositor to the Trustee.
11. 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.
12. In the event that any provision of this Agreement conflicts with any
provision of the Servicing Agreement with respect to the Mortgage Loans, the
terms of this Agreement shall control.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
MORTGAGE ASSET SECURITIZATION
TRANSACTIONS, INC.
By: /s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title: Executive Director
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Name: Xxxxx Xxxxxxxx
Title: Director
XXXXXX, XXXX AND XXXXXXXX
MORTGAGE CORP.
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: CEO
Exhibit A
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Mortgage Loans
As delivered to the Custodian on the Closing Date
A-1
Exhibit B
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Servicing Agreement
B-1