Exhibit 99.10a
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment"),
dated as of September 1, 2006, is entered into among Morgan Stanley
Capital I
Inc., a Delaware corporation (the "Depositor"), Morgan Stanley
Mortgage Capital
Inc. ("MSMCI"), Wachovia Mortgage Corporation as seller ("Wachovia"
and, in such
capacity, the "Seller") and servicer (in such capacity, the
"Servicer"), and
acknowledged by LaSalle Bank National Association, as trustee (the
"Trustee") of
Morgan Stanley Mortgage Loan Trust 2006-13ARX (the "Trust"), and
Wells Fargo
Bank, National Association, as master servicer (or any successor
master
servicer, the "Master Servicer").
RECITALS
WHEREAS
MSMCI, the Seller and the Servicer have entered into a certain
Seller's Purchase, Warranties and Servicing Agreement, dated as of
September 1,
2004 (the "Initial Agreement"), as supplemented by the Amended and
Restated
Regulation AB Compliance Addendum (the "Reg AB Addendum"), dated as
of April 17,
2006, (as further amended or modified to the date hereof, the
"Agreement"),
pursuant to which MSMCI has acquired certain Mortgage Loans
pursuant to the
terms of the Agreement and the Servicer has agreed to service such
Mortgage
Loans;
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
Agreement 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.
(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 Agreement 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.
<PAGE>
(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 Agreement, as modified hereby, 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
Agreement. Accordingly, the right of MSMCI to consent to any
amendment of the
Agreement and its rights concerning waivers as set forth in
Sections 11.02 and
8.02 of the 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.
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
Agreement or this Assignment.
(b) Each
of the parties hereto represents and warrants that it is duly
and
legally authorized to enter into this Assignment.
2
<PAGE>
(c) Each
of the Depositor, MSMCI, Seller and Servicer 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 makes, as of the Closing Date (as defined in the
Pooling and Servicing Agreement referred to below), the
representations and
warranties set forth in Section 3.01 of the 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.
(e) The
Company hereby represents and warrants to the Assignee 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
Agreement. Such
rights will include, without limitation, the right to terminate the
Servicer
under the 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
Agreement, the right to receive all monthly reports and other data
required to
be delivered by the Servicer under the 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 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:
50949300, MSM 2006-13ARX
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 2006-13ARX
Telecopier: (410)
715-2380
5.
Amendments to the Initial Agreement
3
<PAGE>
The
parties to this Assignment hereby agree to amend the Initial
Agreement
as follows:
(a) With respect to the Specified Mortgage Loans, "Permitted
Investments" shall mean at any time, any one or more of the
following obligations and securities:
(i) obligations of the United States or any agency thereof,
provided that such obligations are backed by the full faith
and credit of the United States;
(ii) 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 shall not result in the
downgrading or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed
writing delivered by each Rating Agency;
(iii) commercial or finance company paper which is then
receiving the highest commercial or finance company paper
rating of each Rating Agency rating such paper, or such lower
rating as shall not result in the downgrading or withdrawal of
the ratings then assigned to the Certificates by the Rating
Agencies, as evidenced by a signed writing delivered by each
Rating Agency;
(iv) 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 (or in the case of the principal depository
institution in a holding company system, the commercial paper
or long-term unsecured debt obligations of such holding
company, but only if Moody's is not the applicable Rating
Agency) are then rated 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 shall not result in the
downgrading or withdrawal of the ratings then assigned to the
Certificates by the Rating Agencies, as evidenced by a signed
writing delivered by each Rating Agency;
(v) 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;
(vi) guaranteed reinvestment agreements issued by any bank,
insurance company or other corporation acceptable to the
Rating Agencies at the time of the issuance of such
agreements, as evidenced by a signed writing delivered by each
Rating Agency;
(vii) repurchase obligations with respect to any security
described in clauses (i) and (ii) above, in either case
entered into with a depository institution or trust company
(acting as principal) described in clause (iv) above;
(viii) 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
4
<PAGE>
investment, have one of the two highest ratings of each Rating
Agency (except if the Rating Agency is Moody's, such rating
shall be the highest commercial paper rating of Moody's for
any such series), or such lower rating as shall not result in
the downgrading or withdrawal of the ratings then assigned to
the Certificates by the Rating Agencies, as evidenced by a
signed writing delivered by each Rating Agency;
(ix) interests in any money market fund which at the date of
acquisition of the interests in such fund and throughout the
time such interests are held in such fund has the highest
applicable rating by each Rating Agency rating such fund or
such lower rating as shall not result in a change in the
rating then assigned to the Certificates by each Rating
Agency, as evidenced by a signed writing delivered by each
Rating
Agency, including funds for which the Trustee, the
Master Servicer, the Securities Administrator or any of its
Affiliates is investment manager or adviser;
(x) short-term investment funds sponsored by any trust company
or national banking association incorporated under the laws of
the United States or any state thereof which on the date of
acquisition has been rated by each applicable Rating Agency in
their respective highest applicable rating category or such
lower rating as shall not result in a change in the rating
then specified stated maturity and bearing interest or sold at
a discount acceptable to each Rating Agency as shall not
result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as
evidenced by a signed writing delivered by each Rating Agency;
and (xi) such other investments having a specified stated
maturity and bearing interest or sold at a discount acceptable
to the Rating Agencies as shall not result in the downgrading
or withdrawal of the ratings then assigned to the Certificates
by the Rating Agencies, as evidenced by a signed writing
delivered by each Rating Agency;
provided, that no such instrument shall be a Permitted
Investment if (i) such instrument evidences the right to
receive interest only payments with respect to the obligations
underlying such instrument or (ii) such instrument would
require the Depositor to register as an investment company
under the Investment Company Act of 1940, as amended.
(b) The definition of "Remittance Date" in Section 1.01 of the
Initial Agreement is hereby amended and restated in its entirety
as
follows:
"Remittance Date: The 18th day of each month (or, if such 18th day
is not
a Business Day, the following Business Day)."
(c) The definition of "Servicing Fee" in Section 1.01 of the
Initial
Agreement is hereby amended and restated in its entirety as
follows:
"The
Servicing Fee with respect to each Mortgage Loan for any
calendar
month (or a portion thereof) shall be 1/12 of the product of (i)
the Scheduled
Principal Balance of the Mortgage Loan and (ii) the Servicing Fee
Rate
applicable to such Mortgage Loan. Such fee shall be payable
monthly, computed on
the basis of the same principal amount and period respecting which
any related
interest payment on a Mortgage Loan is computed."
5
<PAGE>
(d) The definition of "Servicing Fee Rate" in Section 1.01 of
the
Initial Agreement is hereby amended and restated in its entirety
as
follows:
"Servicing
Fee Rate": With respect to the adjustable rate Mortgage Loans,
0.250% per annum."
(e) Subsection 3.02(d) of the Initial Agreement is hereby
amended
and restated in its entirety as follows:
"As of the
Closing Date, none of the Mortgage Loans are contractually past
due by more than 30 days;"
(f) The following paragraphs are hereby incorporated into the
Initial Agreement at the end of Section 4.13:
"The
Seller 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 Seller
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.
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 Seller has agreed to indemnify
and hold
harmless the Purchaser, or its designee, with respect to the
imposition of any
such taxes."
(g) The second paragraph of Section 5.01 of the Initial Agreement
is
hereby amended and restated in its entirety as follows:
"With
respect to any remittance received by the Purchaser after the
Business Day on which such payment was due, the Seller 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 Seller
on the date
such late payment is made and shall cover the period commencing
with such
Business Day on which such payment was due and ending with the
Business Day on
which such payment is made, both inclusive. Such interest shall be
remitted
along with the distribution payable on the next succeeding
Remittance Date. The
payment by the Seller of any such interest shall not be deemed an
extension of
time for payment or a waiver of any Event of Default by the
Seller."
(h) The first paragraph of Section 5.02 of the Initial Agreement
is
hereby amended and restated in its entirety as follows:
"Not later
than the 5th Business Day of each month (or if such 5th day is
not a Business Day, the Business Day next succeeding such 5th day),
the Seller
shall furnish to the Master Servicer in electronic
6
<PAGE>
form mortgage loan level data as mutually agreed upon by the Seller
and the
Master Servicer and the monthly reports substantially in the form
of Exhibit J
attached hereto with respect to the Mortgage Loans and the period
from but
including the first day of the preceding calendar month through but
excluding
the first day of such month."
(i) The first paragraph of Section 5.03 of the Initial Agreement
is
hereby amended and restated in its entirety as follows:
"Not later
than the close of business on the Business Day preceding each
Remittance Date, the Seller shall either (a) deposit in the
Custodial Account
from its own funds an amount equal to the principal and interest
portion of all
Monthly Payments (with interest adjusted to the Mortgage Loan
Remittance Rate)
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 4.01,
(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
5.03, used by the Seller in discharge of any such Monthly Advance
or (c) make
Monthly Advances in the form of any combination of (a) or (b)
aggregating the
total amount of Monthly Advances to be made, whether or not
deferred pursuant to
Section 4.01, which were due on a Mortgage Loan on the immediately
preceding Due
Date and delinquent at the close of business on the related
Determination Date."
(j) The word "or" is deleted from the end of Section 8.01(vii),
the
word "or" is added at the end of Section 8.01(viii) and the
following paragraph is hereby incorporated into the Agreement as
new
Section 10.01(ix):
"(ix)
failure by the Seller to duly perform, within the required time
period, its obligations under Section 2.04 and Section 2.05 of the
Reg AB
Addendum which failure continues unremedied for a period of
fourteen (14) days
after the date on which written notice of such failure, requiring
the same to be
remedied, shall have been given to the Seller by any party to this
Agreement or
by any master servicer responsible for master servicing the
Mortgage Loans
pursuant to a securitization of such Mortgage Loans;"
(k) The following paragraph is hereby incorporated into the
Initial
Agreement
as new Section 11.19:
"Third
Party Beneficiary. For purposes of this Agreement, including
but
not limited to Section 2.04 and Section 2.05, respectively, of the
Reg AB
Addendum, any Master Servicer shall be considered a third party
beneficiary to
this Agreement (including the Reg AB Addendum and any other
amendments or
modifications thereto) entitled to all the rights and benefits
accruing to any
Master Servicer herein as if it were a direct party to this
Agreement."
(l) Section 6.04 and Section 6.05 are hereby deleted from the
Initial Agreement, it being understood that they are superseded
by
Section 2.04 and Section 2.05, respectively, of the Reg AB
Addendum.
(m) The second sentence in Section 8.01 of the Initial Agreement
is
hereby replaced by the following:
"On or
after the receipt by the Seller of such written notice of
termination, all authority and power of the Seller, as servicer,
under this
Agreement, whether with respect to the Mortgage Loans or
otherwise,
