Exhibit 99.10(a)
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment"), dated of January 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 2007-2AX (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:
1.
Assignment and Assumption
(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.
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(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.
2.
Recognition of Trustee
(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
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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.
3.
Representations and Warranties
(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 January 31, 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).
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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
ABA Number: 121-000-248
Account Name:
Corporate Trust Clearing
Account number:
3970771416
For further credit to:
50981300, MSM 2007-2AX
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
9062 Old Annapolis Road
Columbia, Maryland 21045
Attention: Client Manager, MSM 2007-2AX
Telecopier: (410) 715-2380
5.
Amendments to the Servicing Agreement
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
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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):
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"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 Certificate 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
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"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 10th 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
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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
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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, provide to the party
responsible
for filing such report (including, if applicable, the Master
Servicer) notice of the occurrence of any of the following
events
along with all information, data, and materials related thereto
as
may be required to be included in the related distribution
report
on Form 10-D (as specified in the provisions of Regulation AB
referenced below):
(i) any material modifications, extensions or waivers
of pool asset terms, fees, penalties or payments during the
distribution period or that have cumulatively become
material over time (Item 1121(a)(11) of Regulation AB);
(ii) material breaches of pool asset representations
or warranties or transaction covenants (Item 1121(a)(12) of
Regulation AB); and
(iii) information regarding new asset-backed
securities issuances backed by the same pool assets, any
pool asset changes (such as, additions, substitutions or
repurchases), and any material changes in origination,
underwriting or other criteria for acquisition or selection
of pool assets (Item 1121(a)(14) of Regulation AB).
(g) The Servicer shall provide to the Purchaser, any Master
Servicer and any Depositor, evidence of the authorization of
the
person signing any certification or statement, copies or other
evidence of Fidelity Bond Insurance and Errors and Omission
Insurance policy, financial information and reports, and such
other information related to the Servicer or any Subservicer or
the Servicer or such Subservicer's performance hereunder."
(s)
Section 13.05(a)(iv) of the Servicing Agreement is hereby
amended
and
restated in its entirety as follows:
"(iv) deliver, and cause each subservicer and subcontractor
described
in clause (iii) above to deliver, to the Purchaser, any
Depositor
and any other Person that will be responsible for signing the
certification (a "Sarbanes Certification") required by Rules
13a-14(d)
and
15d-14(d) under the Exchange Act (pursuant to Section 302 of
the
Sarbanes-Oxley Act of 2002) on behalf of an asset-backed issuer
with
respect to
a
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Securitization Transaction a certification, signed by an
appropriate
officer of
the Servicer, in the form attached hereto as Exhibit 7."
(t)
Section 13.06(a) of the Servicing Agreement is hereby amended to
add
Sections
13.03(f) and 13.03(g) as provisions that the Subservicers must
comply
with to same extent as if such Subservicer were the Servicer.
(u) The
last sentence of the last paragraph of Section 13.06 of the
Servicing
Agreement is amended to require the Servicer to cause any
Subservicer or Subcontractor to provide any assessment of
compliance and
attestation but also any other certifications required to
delivered
under this
Section 13.06.
(v)
Section 13.07(a)(ii) of the Servicing Agreement is hereby
amended
and
restated in its entirety as follows:
"(ii) any breach by the Seller or Servicer under, or any
failure
by any
Seller, the Servicer, any Subservicer, any Subcontractor or any
Third-Party Originator to deliver any information, report,
certification, accountants' letter or other material when and
as
required,
under this Article XIII, including any failure by the Servicer
to
identify pursuant to Section 13.06(b) any Subcontractor
"participating in the servicing function" within the meaning of
Item
1122 of
Regulation AB;"
(w) The
word "or" is struck at the end of Section 13.07(a)(ii) of the
Servicing
Agreement and the following is inserted to Section 13.07(a) of
the
Servicing Agreement:
"(iv) negligence, bad faith or willful misconduct of the
Servicer
in
connection with its performance under this Article XIII.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the
Servicer
agrees
that it shall contribute to the amount paid or payable by such
Indemnified Party as a result of any claims, losses, damages or
liabilities incurred by such Indemnified Party in such proportion
as is
appropriate to reflect the relative fault of such Indemnified Party
on
the one
hand and the Servicer on the other.
This indemnification shall survive the termination of this
Agreement
or the termination of any party to this Agreement."
(x) The
following parenthetical is inserted directly before the proviso
in the
last sentence of the first paragraph of Section 13.07(b)(i) of
the
Servicing Agreement:
(y) "(and if the Servicer is servicing any of the Mortgage
Loans
in a Securitization Transaction, appoint a successor servicer
reasonably acceptable to the Master Servicer for such
Securitization Transaction)"
(z) Exhibit 1 to the Servicing Agreement is hereby deleted and
replaced with Exhibit II to this Assignment.
(aa) Exhibit 7 to the Servicing Agreement is hereby deleted and
replaced
with Exhibit III to this Assignment.
10
<PAGE>
(bb) Exhibit 8 to the Servicing Agreement is hereby deleted and
replaced with Exhibit IV to this Assignment.
(cc) Written notice provided in compliance with Sections
13.03(d),
(e) or (f) of the Servicing Agreement shall be substantially in
the form of Exhibit V to this Assignment.
6.
Indemnification
The Master
Servicer shall indemnify and hold harmless the Servicer and
its affiliates, and in each case, its officers, directors and
agents from and
against any losses, damages, penalties, fines, forfeitures,
reasonable legal
fees and related costs, judgments and other costs and expenses
arising out of
or based upon a breach by the Master Servicer or any of its
officers,
directors, agents or affiliates of its obligations in connection
with the
preparation, filing and certification of any Form 10-K pursuant to
the Pooling
and Servicing Agreement or the negligence, bad faith or willful
misconduct of
the Master Servicer in connection therewith. In addition, the
Master Servicer
shall indemnify and hold harmless the Servicer and its affiliates,
and in each
case, its officers, directors and agents from and against any
losses, damages,
penalties, fines, forfeitures, reasonable legal fees and related
costs,
judgments and other costs and expenses arising out of or based upon
a breach
by any Servicer (as defined in the Pooling and Servicing
Agreement), other
than the Servicer (as defined herein), of its obligations in
connection with
any back-up certification (or any other back-up documents) to
any
certification of any Form 10-K required to be provided by the
Master Servicer,
but solely to the extent the Master Servicer receives amounts from
such
Servicer in connection with any indemnification provided by such
Servicer (in
each case as defined in the Pooling and Servicing Agreement) to the
Master
Servicer.
7.
Continuing Effect
Except as
contemplated hereby, the Agreements shall remain in full force
and effect in accordance with their terms.
8.
Governing Law
This
Assignment and the rights and obligations hereunder shall be
governed by and construed in accordance with the internal laws of
the State of
New York.
9.
Notices
Any
notices or other communications permitted or required under the
Agreements to be made to the Depositor, MSMCI, the Master Servicer,
the
Seller, the Servicer and the Trustee shall be made in accordance
with the
terms of the Agreements and shall be sent to the Depositor and
Trustee as
follows:
In the
case of MSMCI:
Morgan Stanley Mortgage Capital Inc.
1221 Avenue of the Americas
New York, New York 10020
11
<PAGE>
Attention: Morgan Stanley Mortgage Loan Trust 2007-2AX
With a
copy to:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Attention: General Counsel's Office
In the
case of the Depositor:
Morgan Stanley Capital I Inc.
1585 Broadway
New York, New York 10036
Attention: Morgan
Stanley Mortgage Loan Trust 2007-2AX
In the
case of the Trustee:
LaSalle Bank National Association
135 South LaSalle Street, Suite 1511
Chicago, Illinois 60603
Attention: Global Securities and Trust Services MSM 2007-2AX
In the
case of the Seller and the Servicer:
IndyMac Bank, F.S.B.
3465 E. Foothill Boulevard
Pasadena, California 91107
Attention: Secondary Marketing
or to such other address as may hereafter be furnished by the
Depositor and
the Trustee to the parties in accordance with the provisions of
the
Agreements.
10.
Ratification
Except as
modified and expressly amended by this Assignment, the
Agreements are in all respects ratified and confirmed, and all
terms,
provisions and conditions thereof shall be and remain in full force
and
effect.
11.
Counterparts
This
Assignment may be executed in counterparts, each of which when
so
executed shall be deemed to be an original and all of which when
taken
together shall constitute one and the same instrument.
12.
Definitions
12
<PAGE>
Any
capitalized term used but not defined in this Assignment has
the
same meaning as in the Agreements.
[SIGNATURE PAGE FOLLOWS]
13
<PAGE>
IN WITNESS
WHEREOF, the parties hereto have executed this Assignment the
day and year first above written.
MORGAN STANLEY MORTGAGE CAPITAL INC.
By: /s/
VALERIE KAY
----------------------------------
Name: VALERIE KAY
Title: VICE PRESIDENT
MORGAN STANLEY CAPITAL I INC.
By: /s/
VALERIE KAY
----------------------------------
Name: VALERIE KAY
Title: VICE PRESIDENT
INDYMAC BANK, F.S.B.
By:
/s/
JILL JACOBSON
----------------------------------
Name: JILL
JACOBSON
Title: VICE PRESIDENT
Acknowledged and Agreed:
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Master Servicer
By: /s/ MARTIN REED
------------------------------------
Name:
MARTIN REED
Title: VICE
PRESIDENT
LASALLE BANK, NATIONAL
ASSOCIATION, as Trustee of Morgan Stanley
Mortgage Loan Trust 2007-2AX
By: /s/ SUSAN L. FELD
------------------------------------
Name: SUSAN L.
FELD
Title: ASSISTANT VICE
PRESIDENT
<PAGE>
.
EXHIBIT I
Mortgage Loan Schedule
[see Schedule A to Pooling and Servicing Agreement]
<PAGE>
<TABLE>
<CAPTION>
Exhibit IIA: Standard File Layout - Delinquency Reporting
------------------------------
---------------------------------------------------------------------------------------------------
Column/Header Name
Description
------------------------------
---------------------------------------------------------------------------------------------------
<S>
<C>
SERVICER_LOAN_NBR
A unique number assigned to a loan by the Servicer. This may be different than the
LOAN_NBR
------------------------------
---------------------------------------------------------------------------------------------------
LOAN_NBR
A unique identifier assigned to each loan by the originator.
------------------------------
---------------------------------------------------------------------------------------------------
CLIENT_NBR
Servicer Client Number
------------------------------
---------------------------------------------------------------------------------------------------
SERV_INVESTOR_NBR
Contains a
unique number as assigned by an external servicer to identify a
group of loans in their
system.
------------------------------
---------------------------------------------------------------------------------------------------
BORROWER_FIRST_NAME
First Name of the Borrower.
------------------------------
---------------------------------------------------------------------------------------------------
BORROWER_LAST_NAME
Last name of the borrower.
------------------------------
---------------------------------------------------------------------------------------------------
PROP_ADDRESS
Street Name and Number of Property
------------------------------
---------------------------------------------------------------------------------------------------
PROP_STATE
The state where the
property located.
------------------------------
---------------------------------------------------------------------------------------------------
PROP_ZIP
Zip code where the property is located.
------------------------------
---------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE
The date that the borrower's next payment is due to the servicer at
the end of processing cycle,
as reported by Servicer.
------------------------------
---------------------------------------------------------------------------------------------------
LOAN_TYPE
Loan Type (i.e. FHA, VA, Conv)
------------------------------
---------------------------------------------------------------------------------------------------
BANKRUPTCY_FILED_DATE
The date a particular bankruptcy claim was filed.
------------------------------
---------------------------------------------------------------------------------------------------
BANKRUPTCY_CHAPTER_CODE
The chapter under which the bankruptcy was filed.
------------------------------
---------------------------------------------------------------------------------------------------
BANKRUPTCY_CASE_NBR
The case number assigned by the court to the bankruptcy filing.
------------------------------
---------------------------------------------------------------------------------------------------
POST_PETITION_DUE_DATE
The payment due date once the bankruptcy has been approved by the
courts
------------------------------
---------------------------------------------------------------------------------------------------
BANKRUPTCY_DCHRG_DISM_DATE The Date
The Loan Is Removed From Bankruptcy. Either by Dismissal,
Discharged and/or a Motion For
Relief Was Granted.
------------------------------
---------------------------------------------------------------------------------------------------
LOSS_MIT_APPR_DATE
The Date The Loss Mitigation Was Approved By The Servicer
------------------------------
---------------------------------------------------------------------------------------------------
LOSS_MIT_TYPE
The Type Of Loss Mitigation Approved For A Loan Such As;
------------------------------
---------------------------------------------------------------------------------------------------
LOSS_MIT_EST_COMP_DATE
The Date The Loss Mitigation /Plan Is Scheduled To End/Close
------------------------------
---------------------------------------------------------------------------------------------------
LOSS_MIT_ACT_COMP_DATE
The Date The Loss Mitigation Is Actually Completed
------------------------------
---------------------------------------------------------------------------------------------------
FRCLSR_APPROVED_DATE
The date DA Admin sends a letter to the servicer with instructions
to begin foreclosure
proceedings.
------------------------------
---------------------------------------------------------------------------------------------------
ATTORNEY_REFERRAL_DATE
Date File Was Referred To Attorney to Pursue Foreclosure
------------------------------
---------------------------------------------------------------------------------------------------
FIRST_LEGAL_DATE
Notice of 1st legal filed by an Attorney in a Foreclosure
Action
------------------------------
------------------------------
