Exhibit 99.8a
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND
RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT (this “ Assignment ”), dated of
February 1, 2007, is entered into among Morgan Stanley Capital I
Inc., a Delaware corporation (the “ Depositor
”), Morgan Stanley Mortgage Capital Inc. (“
MSMCI ”), IndyMac Bank, F.S.B., as seller (in such
capacity, the “ Seller ”) and as servicer (in
such capacity, the “ Servicer ”), LaSalle Bank
National Association (“ LaSalle ”), as trustee
(“ Trustee ”), of Morgan Stanley Mortgage Loan
Trust 2007-5AX (the “Trust”), and acknowledged by Wells
Fargo Bank, National Association, as master servicer (in such
capacity, the “ Master Servicer ”) and as
securities administrator (in such capacity, the “
Securities Administrator ”).
RECITALS
WHEREAS MSMCI, the Seller and the Servicer have
entered into (a) a certain Mortgage Loan Purchase and Warranties
Agreement, dated as of September 1, 2006 (as amended or modified to
the date hereof, the “ Sale Agreement ”) and (b)
a certain Servicing Agreement, dated as of September 1, 2006 (as
amended or modified to the date hereof, the “ Servicing
Agreement ” and, together with the Sale Agreement, the
“ Agreements ”), pursuant to which MSMCI has
acquired certain Mortgage Loans pursuant to the terms of the Sale
Agreement and the Servicer has agreed to service such Mortgage
Loans pursuant to the terms of the Servicing Agreement;
WHEREAS the Depositor has agreed, on the terms
and conditions contained herein, to purchase from MSMCI certain of
the Mortgage Loans (the “ Specified Mortgage Loans
”) which are subject to the provisions of the Agreements and
are listed on the mortgage loan schedule attached as Exhibit I
hereto (the “ Specified Mortgage Loan Schedule
”); and
WHEREAS the Trustee, on behalf of the Trust, has
agreed, on the terms and conditions contained herein, to purchase
from the Depositor the Specified Mortgage Loans;
NOW, THEREFORE, in consideration of the mutual
promises contained herein and other good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged), the
parties agree as follows:
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1.
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Assignment
and Assumption
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(a) On and as of the date hereof, MSMCI hereby
sells, assigns and transfers to the Depositor all of its right,
title and interest in the Specified Mortgage Loans and all rights
and obligations related thereto as provided under the Agreement to
the extent relating to the Specified Mortgage Loans, the Depositor
hereby accepts such assignment from MSMCI (the “ First
Assignment and Assumption ”), and the Seller hereby
acknowledges the First Assignment and Assumption.
MSMCI specifically reserves and does not assign
to the Depositor hereunder any and all right, title and interest
in, to and under and all obligations of MSMCI with respect to any
Mortgage Loans subject to the Agreement which are not the Specified
Mortgage Loans.
(b) On and as of the date hereof, immediately after
giving effect to the First Assignment and Assumption, the Depositor
hereby sells, assigns and transfers to the Trustee, on behalf of
the Trust, all of its right, title and interest in the Specified
Mortgage Loans and all rights and obligations related thereto as
provided under the Agreements to the extent relating to the
Specified Mortgage Loans, and the Trustee, on behalf of the Trust,
hereby accepts such assignment from the Depositor (the “
Second Assignment and Assumption ”), and the Seller
hereby acknowledges the Second Assignment and
Assumption.
(c) On and as of the date hereof, MSMCI represents
and warrants to the Depositor and the Trustee that MSMCI has not
taken any action that would serve to impair or encumber the
respective ownership interests of the Depositor and the Trustee in
the Specified Mortgage Loans since the date of MSMCI’s
acquisition of the Specified Mortgage Loans.
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2.
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Recognition
of Trustee
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(a) From and after the date hereof, both MSMCI and
the Seller shall note the transfer of the Specified Mortgage Loans
to the Trustee, in their respective books and records and shall
recognize the Trustee, on behalf of the Trust, as of the date
hereof, as the owner of the Specified Mortgage Loans, and Servicer
shall service the Specified Mortgage Loans for the benefit of the
Trust pursuant to the Servicing Agreement, the terms of which are
incorporated herein by reference. It is the intention of the
Seller, the Servicer, the Depositor, the Trustee and MSMCI that
this Assignment shall be binding upon and inure to the benefit of
the Depositor, the Trustee and MSMCI and their respective
successors and assigns.
(b) Without in any way limiting the foregoing, the
parties confirm that this Assignment includes the rights relating
to amendments or waivers under the Agreements. Accordingly, the
right of MSMCI to consent to any amendment of the Agreement and its
rights concerning waivers as set forth in Section 23 of the Sale
Agreement and Section 11.02 of the Servicing Agreement shall be
exercisable, to the extent any such amendment or waiver affects the
Specified Mortgage Loans or any of the rights under the Agreement
with respect thereto (other than the servicing of the Specified
Mortgage Loans, which shall be enforced by the Master Servicer) by
the Trustee as assignee of MSMCI.
(c) It is expressly understood and agreed by the
parties hereto that (i) this Assignment is executed and delivered
by LaSalle Bank National Association, not individually or
personally but solely on behalf of the Trust, as the assignee, in
the exercise of the powers and authority conferred and vested in
it, as Trustee, pursuant to the Pooling and Servicing Agreement
dated as of the date hereof among the Depositor, the Master
Servicer, Wells Fargo Bank, National Association, as securities
administrator (the “ Securities Administrator ”)
and the Trustee (the “ Pooling and Servicing Agreement
”), (ii) each of the representations, undertakings and
agreements herein made on the part of assignee is made and intended
not as personal representations, undertakings and agreements by
LaSalle Bank National Association but is made and intended for the
purpose of binding only the Trust , (iii) nothing herein contained
shall be construed as creating any liability for LaSalle Bank
National Association, individually or personally, to perform any
covenant (either express or implied) contained herein and (iv)
under no circumstances shall LaSalle Bank National Association be
personally liable for the payment of any indebtedness or expenses
of the Trust, or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken
by the Trust under this Assignment and (v) all recourse for any
payment liability or other obligation of the assignee shall be had
solely to the assets of the Trust.
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3.
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Representations and Warranties
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(a) The Depositor represents and warrants that it
is a sophisticated investor able to evaluate the risks and merits
of the transactions contemplated hereby, and that it has not relied
in connection therewith upon any statements or representations of
the Seller or MSMCI other than those contained in the Agreements or
this Assignment.
(b) Each of the parties hereto represents and
warrants that it is duly and legally authorized to enter into this
Assignment.
(c) Each of the parties hereto represents and
warrants that this Assignment has been duly authorized, executed
and delivered by it and (assuming due authorization, execution and
delivery thereof by each of the other parties hereto) constitutes
its legal, valid and binding obligation, enforceable against it in
accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors’ rights generally
and by general equitable principles (regardless of whether such
enforcement is considered in a proceeding in equity or at
law).
(d) The Seller hereby restates, as of February 28,
2007 (the “ Closing Date ”), the representations
and warranties set forth in Sections 9.01 and 9.02 of the Sale
Agreement, with respect to each of the Specified Mortgage Loans
that were sold by it under the Sale Agreement, to and for the
benefit of the Depositor, the Trustee and the Trust, and by this
reference incorporates such representations and warranties herein,
as of such date.
(e) The Servicer hereby restates, as of the Closing
Date, the representations and warranties set forth in Articles X
and XIII of the Servicing Agreement, with respect to each of the
Specified Mortgage Loans it agreed to service under the Servicing
Agreement, to and for the benefit of the Depositor, the Trustee and
the Trust, and by this reference incorporates such representations
and warranties herein, as of such Closing Date.
(f) The Servicer hereby represents and warrants to
the Trustee that, to the extent the Mortgage Loans will be part of
a REMIC, the Servicer 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 (a)
cause the REMIC to fail or qualify as a REMIC or (b) 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).
4. The Servicer hereby acknowledges that Wells
Fargo Bank, National Association has been appointed as the Master
Servicer of the Specified Mortgage Loans pursuant to the Pooling
and Servicing Agreement and, therefore, has the right to enforce
all obligations of the Servicer under the Servicing Agreement. Such
rights will include, without limitation, the right to terminate the
Servicer under the Servicing Agreement upon the occurrence of an
event of default thereunder, the right to receive all remittances
required to be made by the Servicer under the Servicing Agreement,
the right to receive all monthly reports and other data required to
be delivered by the Servicer under the Servicing Agreement, the
right to examine the books and records of the Servicer,
indemnification rights and the right to exercise certain rights of
consent and approval of MSMCI. The Servicer shall make all
distributions under the Servicing Agreement to the Master Servicer
by wire transfer of immediately available funds to:
Wells Fargo
Bank, National Association
Account Name:
Corporate Trust Clearing
Account number:
3970771416
For further
credit to: 50989700, MSM 2007-5AX
The Servicer shall deliver all reports required
to be delivered under the Agreement to the Master Servicer at the
following address:
Wells Fargo
Bank, National Association
Attention:
Client Manager, MSM 2007-5AX
Telecopier:
(410) 715-2380
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5.
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Amendments
to the Servicing Agreement
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The parties to this Assignment hereby agree to
amend the Servicing Agreement as follows:
(a)
With respect to the Specified
Mortgage Loans, “Permitted Investments” shall have the
meaning of such term as defined in the Pooling and Servicing
Agreement.
(b)
The definition of “Eligible
Account” is hereby inserted into Section 1.01:
“ 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
the highest short-term ratings of Moody’s or Fitch and one of
the two highest short-term ratings of S&P, if S&P is a
Rating Agency, at the time any amounts are held on deposit therein,
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 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,
or (iii) a 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.”
(c)
The definition of “Remittance
Date” in Section 1.01 is hereby amended and restated in its
entirety as follows:
“ Remittance Date : No later than
1:00 p.m. New York time on the 18th day of each month (or, if such
18th day is not a Business Day, the following Business Day)
beginning with the first Remittance Date after the Closing
Date.”
(d)
The definition of “Servicing
Fee” in Section 1.01 is hereby amended and restated in its
entirety as follows:
“ Servicing Fee : With respect to
each Mortgage Loan subject to this Agreement, an amount equal to
one-twelfth of the product of (a) the Servicing Fee Rate and (b)
the scheduled principal balance of such Mortgage Loan payable
monthly. Such fee shall be payable monthly. The obligation of the
Purchaser to pay the Servicing Fee is limited to, and the Servicing
Fee is payable solely from, the interest portion (including
recoveries with respect to interest from Liquidation Proceeds, to
the extent permitted by Section 4.03) of such Monthly Payment
collected by the Servicer, or as otherwise provided under Section
4.03.”
(e)
With respect to each Specified
Mortgage Loan, the definition of “Servicing Fee Rate”
in Section 1.01 is hereby amended and restated in its entirety as
follows:
“ Servicing Fee Rate : 37.5 basis
points (0.375%) per annum.”
(f)
The second and third sentences of
the first paragraph of Section 2.04 are amended and restated in
their entirety as follows:
“The Custodial Account shall be an
Eligible Account established with a Qualified Depository acceptable
to the Purchaser. Any funds deposited in the Custodial Account
shall at all times be fully insured.”
(g)
The second sentence of the last
paragraph of Section 2.04 is amended and restated in its entirety
as the following two sentences:
“The Servicer may at its option invest the
amounts on deposit in the Custodial Account in Permitted
Investments. Any income from Permitted Investments paid on funds
deposited in the Custodial Account by the depository institution
shall accrue to the benefit of the Servicer and the Servicer shall
be entitled to retain and withdraw such interest from the Custodial
Account pursuant to Section 2.05.”
(h)
The word “and” is
deleted from the end of Section 2.05(iii) of each Agreement, the
word “and” is added at the end of Section 2.05(iv) of
each Agreement and the following paragraph is hereby incorporated
into each Agreement as new Section 2.05(v):
“to reimburse itself for unreimbursed
Servicing Advances and unreimbursed advances made in accordance
with Section 3.03, to the extent that such amounts are
nonrecoverable by the Servicer pursuant to subclause (ii) above,
provided that the Mortgage Loan for which such advances were made
is not required to be repurchased by the Seller pursuant to
Section 9.03 of the Sale Agreement.”
(i)
The second and third paragraphs of
Section 2.16 of the Servicing Agreement are hereby amended and
restated in their entirety as follows:
“With respect to any REO Property, the
deed or certificate of sale shall be taken in the name of the
Purchaser, or its designee. The Trustee’s name shall be
placed on the title to such REO Property solely as the Trustee
hereunder and not in its individual capacity. The Servicer shall
ensure that the title to such REO Property references the Agreement
and the Purchaser’s capacity thereunder. Pursuant to its
efforts to sell such REO Property, the Servicer shall either itself
or through an agent selected by the Servicer protect and conserve
such REO Property in the same manner and to such extent as is
customary in the locality where such REO Property is located and
may, incident to its conservation and protection of the interests
of the Purchaser, or its designee, rent the same, or any part
thereof, as the Servicer deems to be in the best interest of the
Purchaser, or its designee, for the period prior to the sale of
such REO Property. The Servicer shall prepare for and deliver to
the Purchaser, or its designee, a statement with respect to each
REO Property that has been rented showing the aggregate rental
income received and all expenses incurred in connection with the
maintenance of such REO Property at such times as is necessary to
enable the Purchaser, or its designee, to comply with the reporting
requirements of the REMIC Provisions. The net monthly rental
income, if any, from such REO Property shall be deposited in the
Custodial Account no later than the close of business on each
Determination Date. The Servicer shall perform the tax reporting
and withholding required by Sections 1445 and 6050J of the Code
with respect to foreclosures and abandonments, the tax reporting
required by Section 6050H of the Code with respect to the receipt
of mortgage interest from individuals and any tax reporting
required by Section 6050P of the Code with respect to the
cancellation of indebtedness by certain financial entities, by
preparing such tax and information returns as may be required, in
the form required, and delivering the same to the Purchaser, or its
designee, for filing.
In the event that the Purchaser, or its
designee, acquires any Mortgaged Property as aforesaid or otherwise
in connection with a default or imminent default on a Mortgage
Loan, the Servicer shall dispose of such Mortgaged Property as soon
as practicable in a manner that maximizes the Liquidation Proceeds
thereof, but in no event later than three years after its
acquisition by the Purchaser, or its designee. In that event, the
Purchaser, or its designee, shall have been supplied with an
Opinion of Counsel to the effect that the holding by the Purchaser,
or its designee, of such Mortgaged Property subsequent to a
three-year period, if applicable, will not result in the imposition
of taxes on “prohibited transactions” of any REMIC as
defined in section 860F of the Code or cause any REMIC to fail to
qualify as a REMIC at any time, the Purchaser, or its designee, may
continue to hold such Mortgaged Property (subject to any conditions
contained in such Opinion of Counsel) after the expiration of such
three-year period. Notwithstanding any other provision of this
Agreement, no Mortgaged Property acquired by the Purchaser, or its
designee, shall be rented (or allowed to continue to be rented) or
otherwise used for the production of income by or on behalf of the
Purchaser, or its designee, in such a manner or pursuant to any
terms that would (i) cause such Mortgaged Property to fail to
qualify as “foreclosure property” within the meaning of
section 860G(a)(8) of the Code or (ii) subject any REMIC to the
imposition of any federal, state or local income taxes on the
income earned from such Mortgaged Property under Section 860G(c) of
the Code or otherwise, unless the Servicer has agreed to indemnify
and hold harmless the Purchaser, or its designee, with respect to
the imposition of any such taxes.”
(j)
The first sentence of Section 2.18
of the Servicing Agreement is hereby amended to replace the words
“Business Day of each month” with the words
“calendar day of each month (or, if such 10th day is not a
Business Day, the following Business Day)”
(k)
The first paragraph of Section 3.02
of the Servicing Agreement is hereby amended and restated in its
entirety as follows:
“Each month, no later than the 10
th calendar day of each month, the Servicer shall
furnish to the Master Servicer a remittance report, in the form of
Exhibit II hereto (the “ Remittance Report ”),
and such other mortgage loan level data or information as mutually
agreed upon by the Servicer and the Master Servicer, in electronic
format acceptable to the Master Servicer, in each case with respect
to funds being remitted to the Master Servicer on the related
Remittance Date.”
(l)
The second paragraph of Section
3.01 of the Servicing Agreement is hereby amended and restated in
its entirety as follows:
“With respect to any funds deposited in
the Custodial Account after the Business Day on which such deposit
was required to be made, the Servicer shall pay to the Purchaser
interest on any such late payment at an annual rate equal to the
Prime Rate, adjusted as of the date of each change, plus two
percentage points, but in no event greater than the maximum amount
permitted by applicable law. Such interest shall be deposited in
the Custodial Account by the Servicer on the date such late payment
is made and shall cover the period commencing with such Business
Day and ending with the Business Day on which such payment is made,
both inclusive. The payment by the Servicer of any such interest
shall not be deemed an extension of time for payment or a waiver of
any Event of Default by the Servicer.”
(m)
Section 3.03 of the Servicing
Agreement is hereby amended and restated in its entirety as
follows:
“ Advances by Servicer . On the
Business Day immediately preceding each Remittance Date, the
Servicer shall (a) deposit in the Custodial Account from its own
funds an amount equal to all Monthly Payments which were due on the
Mortgage Loans during the applicable Due Period and which were
delinquent at the close of business on the immediately preceding
Determination Date or which were deferred pursuant to Section 2.01,
(b) cause to be made an appropriate entry in the records of
the Custodial Account that amounts held for future distribution
have been, as permitted by this Section 3.03, used by the
Servicer in discharge of any such advance or (c) make advances
in the form of any combination of (a) or (b) aggregating the total
amount of advances to be made. The Servicer’s obligation to
make such advances as to any Mortgage Loan will continue through
the earlier to occur of (a) the last Monthly Payment due prior to
the payment in full of the Mortgage Loan or (b) the last Remittance
Date prior to the Remittance Date for the distribution of all
Liquidation Proceeds and other payments or recoveries (including
Insurance Proceeds, and Condemnation Proceeds) with respect to the
Mortgage Loan; provided, however, that such obligation shall cease
if the Servicer, in its good faith judgment, determines that an
advance would not be recoverable pursuant to Section 2.05(ii).
The determination by the Servicer that an advance, if made, would
be nonrecoverable, shall be evidenced by an Officer’s
Certificate of the Servicer, delivered to the Purchaser, which
details the reasons for such determination. To the extent permitted
under Section 2.05 hereof, the Servicer shall be entitled to first
priority reimbursement for principal and interest advances and for
Servicing Advances from recoveries from the related Mortgagor or
from all Liquidation Proceeds and other payments or recoveries
(including Insurance Proceeds and Condemnation Proceeds) with
respect to the related Mortgage Loan.”
(n)
Sections 4.04 and 4.05 of the
Servicing Agreement are hereby deleted.
(o)
the following paragraph is hereby
incorporated into the Servicing Agreement as new Section
11.01(h):
“(h) failure by the Servicer to duly perform, within
the required time period, its obligations under Sections 13.04 and
13.05 which failure continues unremedied for a period of fourteen
(14) days;”
(p)
The following paragraph is hereby
incorporated into the Servicing Agreement as new Section
12.16:
“ Third Party Beneficiary . For
purposes of this Agreement, including but not limited to Sections
13.04 and 13.05, any Master Servicer shall be considered a third
party beneficiary to this Agreement entitled to all the rights and
benefits accruing to any Master Servicer herein as if it were a
direct party to this Agreement. In addition, a copy of all
assessments, attestations, reports and certifications required to
be delivered by the Servicer under this Agreement and the Servicing
Agreement shall be delivered to the Master Servicer by the date(s)
specified herein or therein, and where such documents are required
to be addressed to any party, such addressees shall include the
Master Servicer and the Master Servicer shall be entitled to rely
on such documents.”
(q)
Section 13.03(d) of the Servicing
Agreement is hereby amended and restated in its entirety as
follows:
“(d) For the purpose of satisfying the reporting
obligation under the Exchange Act with respect to any class of
asset-backed securities, each Seller and the Servicer shall (or
shall cause each Subservicer and Third-Party Originator to) (i)
provide prompt notice to the Purchaser, any Master Servicer and any
Depositor in writing of (A) any material litigation or governmental
proceedings involving the Servicer, any Subservicer or any
Third-Party Originator, (B) any affiliations or relationships that
develop following the closing date of a Securitization Transaction
between the Servicer, any Subservicer or any Third-Party Originator
and any of the parties specified in clause (D) of paragraph (a) of
this Section (and any other parties identified in writing by the
requesting party) with respect to such Securitization Transaction,
(C) any Event of Default under the terms of this Agreement or any
Reconstitution Agreement, (D) any merger, consolidation or sale of
substantially all of the assets of the Servicer, and (E) the
Servicer’s entry into an agreement with a Subservicer to
perform or assist in the performance of any of the Servicer’s
obligations under this Agreement or any Reconstitution Agreement
and (ii) provide to the Purchaser and any Depositor a description
of such proceedings, affiliations or
relationships.”
(r)
Section 13.03(f) of the Servicing
Agreement is hereby amended and restated in its entirety as
follows:
“(f) In addition to such information as the
Servicer, as servicer, is obligated to provide pursuant to other
provisions of this Agreement, not later than ten days prior to the
deadline for the filing of any distribution report on Form 10-D in
respect of any Securitization Transaction that includes any of the
Mortgage Loans serviced by the Servicer or any Subservicer, the
Servicer or such Subservicer, as applicable, shall, to the extent
the Servicer or such Subservicer has knowledge,
