Exhibit 99.12(a)
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment"), dated as of April 1, 2006, is entered into among
Morgan Stanley
Capital I Inc., a Delaware corporation (the "Depositor"), Morgan
Stanley
Mortgage Capital Inc. ("MSMCI"), Morgan Stanley Credit Corporation
as seller
(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 2006-6AR (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 Second Amended And Restated Master Mortgage Loan Purchase
Agreement,
dated as of February 1, 2004 (as amended or modified to the date
hereof, the
"Initial Purchase Agreement"), and (b) a Third Amended And Restated
Master
Mortgage Loan Purchase Agreement, dated as of November 1, 2005 (as
amended or
modified to the date hereof, the "Purchase Agreement") and (c) a
certain
Amended and Restated Master Servicing Agreement, dated as of
February 1, 2004
(as amended or modified to the date hereof, the "Servicing
Agreement" and,
together with the Initial Purchase Agreement and the Purchase
Agreement, the
"Agreements"), pursuant to which MSMCI has acquired certain
Mortgage Loans
pursuant to the terms of the Agreements 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
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 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 Agreements 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
Agreements which are not the Specified Mortgage Loans.
(b) On and 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,
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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 16 of the Purchase Agreement and Section 12.02 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
Agreements
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, 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, (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 Agreements or this Assignment.
(b) Each of the Depositor, MSMCI, Master Servicer and Seller
represents and warrants that it is duly and legally authorized to
enter into
this Assignment.
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(c) Each of the Depositor, MSMCI, Servicer and Seller 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 the Closing Date (as defined
in
the Pooling and Servicing Agreement), the representations and
warranties set
forth in Section 5 of the Purchase Agreement and Section 3.01 of
the Servicing
Agreement, with respect to each of the Specified Mortgage Loans
that were sold
by it under the Agreements, 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.
4. The Servicer will service the Mortgage Loans in accordance
with
the terms and conditions of the Servicing Agreement and this
Assignment. 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 relating to actions taken by 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: 50913800, MSM 2006-6AR
The
Servicer shall deliver all reports required to be delivered
under
the Servicing 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 2006-6AR
Office Number: (410)
884-2000
Telecopier: (410) 715-2380
For the avoidance of doubt, the parties to this Assignment
hereby
acknowledge that the Master Servicer shall have no obligation for
enforcing or
overseeing the Servicer's activities pursuant to Article V of the
Servicing
Agreement.
5. Amendments to the Servicing Agreement
The parties to this Assignment hereby agree to amend the
Servicing
Agreement as follows:
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(a) The definition of "Permitted Investments" is hereby amended
and restated in its entirety as follows:
"(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 issued pursuant to
the
Pooling and Servicing Agreement (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 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;
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(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 "Principal Prepayment" is hereby added to
Section 1.01 of the Servicing Agreement:
"Principal Prepayment": Any payment or other recovery of principal
on
a Mortgage Loan which is received in advance of its scheduled Due
Date,
including any prepayment penalty, if applicable, or premium thereon
and which
is not accompanied by an amount of interest representing scheduled
interest
due on any date or dates in any month or months subsequent to the
month of
prepayment."
(c) The definition of "Servicing Fee Rate" in Section 1 of the
Agreement is hereby amended and restated in its entirety as
follows:
"Servicing Fee Rate": With respect to the fixed rate Mortgage
Loans,
0.25% per annum."
(d) For the avoidance of doubt, Section 4.05(ii) allows the
Servicer to use Liquidation Proceeds, Condemnation Proceeds and
Insurance Proceeds, and with respect to REO Property, funds
received as rental or similar income to reimburse itself for
unreimbursed Monthly Advances, subject to the other limitations
contained in such Section 4.05(ii).
(e) For the avoidance of doubt, Section 4.05(iii) allows the
Servicer to use funds from the Custodial Account to reimburse
itself for unreimbursed Servicing Advances, subject to the
other limitations contained in such Section 4.05(iii).
(f) The first paragraph of Section 4.13 of the Servicing
Agreement is hereby amended and restated in its entirety as
follows:
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"With respect to any REO Property, the deed or certificate of
sale
shall be taken in the name of the Owner, 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. With respect to any
REO
Property, the Servicer shall take title as "LaSalle Bank National
Association,
as Trustee, under the Pooling and Servicing Agreement dated April
1, 2006.
Pursuant to its efforts to sell such REO Property, the Servicer
shall either
itself or through an agent selected by the Servicer, manage,
protect, conserve
and operate 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, management and operation and protection of the
interests
of the Owner, or its designee, rent the same, or any part thereof,
as the
Servicer deems to be in the best interest of the Owner, or its
designee, for
the period prior to the sale of such REO Property. The Servicer
shall prepare
for and deliver to the Owner, 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 Owner, 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 Owner, or its designee, for filing.
In the event that the Owner, 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 Owner, or its designee. In that event, the Owner, or its
designee,
shall have been supplied with an Opinion of Counsel to the effect
that the
holding by the Owner, 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
Owner, 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 Owner, 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 Owner, 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 Owner, or its
designee, with
respect to the imposition of any such taxes."
(g) The second sentence of the third paragraph of Section 6.01
of the Servicing Agreement is hereby amended and restated in
its entirety as follows:
"Such interest shall be paid by Servicer to Owner on the date
such
late payment is made and shall cover the period commencing with the
Business
Day on which such payment was due and ending with the Business Day
on which
such payment is made, both inclusive."
(h) The first paragraph of Section 6.02 of the Servicing
Agreement is hereby amended and restated in its entirety as
follows:
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"Statements to the Owner. Not later than the 10th calendar day
of
each month (or, if such 10th day is not a Business Day, the
following Business
Day), the Servicer shall forward to the Master Servicer in hard
copy and
electronic format a statement setting forth (a) the amount of the
distribution
made on such Remittance Date which is allocable to principal and
allocable to
interest; (b) the amount of servicing compensation received by the
Servicer
during the prior calendar month; (c) the aggregate Stated Principal
Balance
and the aggregate unpaid principal balance of the Mortgage Loans as
of the
last day of the preceding month; and (d) the paid through date for
each
Mortgage Loan. Such statement shall also include mortgage loan
level data as
agreed upon by the Servicer and the Master Servicer and, for
Mortgage Loans
having been foreclosed and liquidated, the monthly reports
substantially in
the form of Exhibit C, as applicable, attached hereto."
(i) Sections 7.04, 7.05 and 7.07 of the Servicing Agreement are
hereby deleted.
(j) The word "or" is added at the end of Sections 10.01(vi) and
10.01(vii) and the following paragraph is hereby incorporated
into the Servicing Agreement as new Section 10.01(viii):
"(f) failure by the Servicer to duly perform, within the
required
time period, its obligations under Sections 7.04 and 7.05 of the
Purchase
Agreement 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 Servicer 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) Section 11.01 of the Servicing Agreement is hereby amended
and restated in its entirety:
"Termination. The respective obligations and responsibilities
of
Servicer shall terminate upon: (i) the later of the final payment
or other
liquidation (or any advance with respect thereto) of the last
Mortgage Loan or
the disposition of all REO Property and the remittance of all funds
due
hereunder, (ii) mutual consent of Servicer and Owner in writing or
(iii) a
resignation permitted by Section 9.04 hereof.
(l) The following paragraph is hereby incorporated into the
Servicing Agreement as new Section 12.15:
"Third Party Beneficiary. For purposes of this Agreement and
the
Purchase Agreement, including but not limited to Section 7.05 of
the Purchase
Agreement, any Master Servicer shall be considered a third party
beneficiary
to this Agreement and the Purchase Agreement, entitled to all the
rights and
benefits accruing to any Master Servicer herein as if it were a
direct party
to this Agreement and the Purchase Agreement."
(m) Exhibit C to the Servicing Agreement is hereby replaced in
its entirety with the Amended and Restated Exhibit C attached
to this Assignment as Exhibit II.
6. Amendments to the Purchase Agreement
The parties to this Assignment hereby agree to amend the Purchase
Agreement as
follows:
(a) The first sentence of Section 7.03(c) of the Purchase
Agreement is hereby amended and restated in its entirety as
follows:
"If so requested by the Purchaser, the Seller shall provide
such
information regarding the Seller, as servicer of the Mortgage
Loans, and each
Subservicer (each of the Seller and each Subservicer, for
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purposes of this paragraph, a "Servicer"), as is requested for the
purpose of
compliance with Items 1108, 1117 and 1119 of Regulation AB.
(b) Section 7.03(d) of the Purchase Agreement is hereby amended
and restated in its entirety as follows:
"For the purpose of satisfying the reporting obligation under
the
Exchange Act with respect to any class of asset-backed securities,
the Company
shall (or shall cause each Subservicer to) (i) promptly notify the
Purchaser,
any Master Servicer and any Depositor in writing of (A) any
litigation or
governmental proceedings pending against the Company, any
Subservicer or any
Third-Party Originator that would be material to securityholders,
(B) any
affiliations or relationships that develop following the closing
date of a
Securitization Transaction between the Company, any Subservicer 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 Company and (E)
the
Company's entry into an agreement with a Subcontractor to perform
or assist
the Company with the performance of any of the Company'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."
(c) Section 7.03 (e) (ii) of the Purchase Agreement is hereby
amended and restated in its entirety as follows:
"which may be appointed as a successor to the Seller or any
Subservicer, the Seller shall provide to the Purchaser, and any
Master
Servicer at least fifteen (15) calendar days prior to the effective
date of
such succession or appointment,"
(d) Section 7.03 (f) of the Purchase Agreement is hereby
amended and restated in its entirety as follows:
"In addition to such information as the Company, as servicer, is
obligated to
provide pursuant to other provisions of this Agreement, not later
than ten
(10) 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 Company or any Subservicer, the
Company or
such Subservicer, as applicable, shall, to the extent the Company
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).
(e) The following is inserted as 7.03 (g) of the Purchase
Agreement:
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"The Company 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 Company or any
Subservicer
or the Company or such Subservicer's performance hereunder as may
be
reasonably requested by the Purchaser, any Master Servicer or any
Depositor."
(f) Section 7.04 of the Purchase Agreement is hereby amended
and restated in its entirety as follows:
"On or before March 1 of each calendar year, commencing in 2007,
the Servicer
shall deliver to the Owner, any Master Servicer and any Depositor a
statement
of compliance addressed to the Owner, such Master Servicer and such
Depositor
and signed by an authorized officer of the Servicer, to the effect
that (i) a
review of the Servicer's activities during the immediately
preceding calendar
year (or applicable portion thereof) and of its performance under
this
Agreement and any applicable Reconstitution Agreement during such
period has
been made under such officer's supervision, and (ii) to the best of
such
officers' knowledge, based on such review, the Servicer has
fulfilled all of
its obligations under this Agreement and any applicable
Reconstitution
Agreement in all material respects throughout such calendar year
(or
applicable portion thereof) or, if there has been a failure to
fulfill any
such obligation in any material respect, specifically identifying
each such
failure known to such officer and the nature and the status
thereof.
In the event that the Servicer fails to timely comply with this
Section 7.04,
the Depositor shall use its commercially reasonable efforts to
obtain written
statements or assurances from the Commission, that such failure to
provide the
required statement of compliance on a timely basis, and a one time
additional
failure by the Servicer to comply with this Section 7.04, will not
result in
any adverse effect on the Depositor or its affiliates with respect
to any
Shelf Registration on Form S-3 of the Depositor or any of its
affiliates. Any
costs or expenses incurred by the Depositor or the Master Servicer
in
obtaining such statement or assurances from the Commission shall be
reimbursed
to the Depositor or the Master Servicer by the Servicer. In the
event that the
Depositor is unable to receive any such assurances from the
Commission after
the use of such commercially reasonable efforts of the related
year, such
failure by the Servicer to comply with this Section 7.04 shall be
deemed an
Event of Default, automatically at such time, without notice and
without any
cure period, and Depositor may, in addition to whatever rights the
Depositor
may have under Section 8 of the Purchase Agreement and at law or
equity or to
damages, including injunctive relief and specific performance,
terminate all
the rights and obligations of the Servicer under this Agreement and
in and to
the Mortgage Loans and the proceeds thereof without compensating
the Servicer
for the same, as provided in Section 11 of the Purchase Agreement.
Such
termination shall be considered with cause pursuant to Section
11.01 of the
Purchase Agreement. This paragraph shall supersede any other
provision in this
Agreement or any other agreement to the contrary."
(g) Section 7.05(a)(i) of the Purchase Agreement is hereby
amended and restated in its entirety as follows:
"deliver to the Purchaser and any Master Servicer a report (in form
and
substance reasonably satisfactory to the Purchaser and such Master
Servicer)
regarding the Seller's assessment of compliance with the Servicing
Criteria
during the immediately preceding calendar year, as required under
Rules 13a-18
and 15d-18 of the Exchange Act and Item 1122 of Regulation AB. Such
report
shall be addressed to the Purchaser and signed by an authorized
officer of the
Seller, and shall address each of the Servicing Criteria specified
on a
certification substantially in the form of Exhibit 12 hereto
delivered to the
Purchaser concurrently with the execution of this Agreement;"
(h) Section 7.05(a)(ii) of the Purchase Agreement is hereby
amended and restated in its entirety as follows:
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"deliver to the Purchaser and such Master Servicer a report of a
registered
public accounting firm reasonably acceptable to the Purchaser and
any Master
Servicer that attests to, and reports on, the assessment of
compliance made by
the Seller and delivered pursuant to the preceding paragraph. Such
attestation
shall be in accordance with Rules 1-02(a)(3) and 2-02(g) of
Regulation S-X
under the Securities Act and the Exchange Act;"
(i) Section 7.05(a)(iii) of the Purchase Agreement is hereby
amended and restated in its entirety as follows:
"cause each Subservicer, and each Subcontractor determined by the
Seller
pursuant to Subsection 7.06(b) to be "participating in the
servicing function"
within the meaning of Item 1122 of Regulation AB, to deliver to the
Purchaser
and any Master Servicer an assessment of compliance and
accountants'
attestation as and when provided in paragraphs (a) and (b) of this
Section;
and"
(j) Section 7.05(a)(iv) of the Purchase Agreement is hereby
amended
and restated in its entirety as follows:
"deliver, and cause each Subservicer and Subcontractor described in
clause
(iii) above to deliver, to the Purchaser, the Master Servicer, 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 Securitization
Transaction
a certification, signed by an appropriate officer of the Servicer,
in the form
attached hereto as Exhibit 11. In addition to providing the
Sarbanes
Certification, the Servicer shall also cooperate with the Depositor
and
provide such additional information as the Depositor may reasonably
request
with respect thereto."
(k) The first sentence of Section 7.06(a) is amended to add the
Master Servicer as a party that the Seller need not seek
consent from for the utilization of any Subservicer. The third
sentence of Section 7.06(a) is amended to require the Company
to cause any Subservicer or Subcontractor to comply with all of
the following Sections of the Purchase Agreement: Section 7.02,
Section 7.03(c), (e), (f) and (g), Section 7.04, Section 7.05,
Section 7.06(a) and Section 7.07.
(l) The first paragraph of Section 7.06(b) is hereby amended
and restated in its entirety as follows:
"It shall not be necessary for the Seller to seek the consent of
the Purchaser
or any Master Servicer to the utilization of any Subcontractor. The
Seller
shall promptly upon request provide to the Purchaser and any Master
Servicer a
written description (in form and substance satisfactory to the
Purchaser and
such Master Servicer) of the role and function of each
Subcontractor utilized
by the Seller or any Subservicer, specifying (i) the identity of
each such
Subcontractor, (ii) which, if any, of such Subcontractors are
"participating
in the servicing function" within the meaning of Item 1122 of
Regulation AB,
and (iii) which elements of the Servicing Criteria will be
addressed in
assessments of compliance provided by each Subcontractor identified
pursuant
to clause (ii) of this paragraph.""
(m) The last sentence of the second paragraph of Section
7.06(b) is amended to require the Company to cause any
Subservicer or Subcontractor to provide any assessment of
compliance and attestation but also any other certifications
required to delivered under Section 7.05.
(n) Section 7.07(a) of the Purchase Agreement is hereby amended
and restated in its entirety as follows:
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"The Seller shall indemnify the Purchaser, each affiliate of the
Purchaser,
and each of the following parties participating in a
Securitization
Transaction: each sponsor and issuing entity; each Person,
including but not
limited to, any Master Servicer, responsible for the preparation,
execution or
filing of any report required to be filed with the Commission with
respect to
such Securitization Transaction, or for execution of a
certification pursuant
to Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect to
such Securitization Transaction; each broker dealer acting as
underwriter,
placement agent or initial purchaser, each Person who controls any
of such
parties (within the meaning of Section 15 of the Securities Act and
Section 20
of the Exchange Act); and the respective present and former
directors,
officers, employees and agents of each of the foregoing, and of the
Depositor
(each, an "Indemnified Party"), and shall hold each of them
harmless from and
against any losses, damages, penalties, fines, forfeitures, legal
fees and
expenses and related costs, judgments, and any other costs, fees
and expenses
that any of them may sustain arising out of or based upon:
(o) Section 7.07(a)(ii) of the Purchase Agreement is hereby
amended and restated in its entirety as follows:
"(ii) any breach by the Company under this Section 7, including
particularly
any failure by the Company, any Subservicer, any Subcontractor to
deliver any
information, report, certification, accountants' letter or other
material when
and as required, under this Section 7, including any failure by the
Company to
identify pursuant to Section 7.06(b) any Subcontractor
"participating in the
servicing function" within the meaning of Item 1122 of Regulation
AB;"
(p) The following parenthetical is inserted directly before the
proviso in the last sentence of the first paragraph of Section
7.07(b)(i) of the Purchase Agreement:
"(and if the Company 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)"
(q) The following is added as Section 7.07(c) of the Purchase
Agreement:
"(c) If the indemnification provided for herein is unavailable or
insufficient
to hold harmless an Indemnified Party, then the Company 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 Company on the
other.
This indemnification shall survive the termination of this
Agreement
or the termination of any party to this Agreement."
(r) Exhibit 11 to the Purchase Agreement is hereby replaced in
its entirety with the Amended and Restated Exhibit 11 attached
to this Assignment as Exhibit C-1.
(s) Exhibit 12 to the Purchase Agreement is hereby replaced in
its entirety with the Amended and Restated Exhibit 12 attached
to this Assignment as Exhibit A-1.
(t) Written notice provided in compliance with Sections
7.03(d), (e) or (f) of the Purchase Agreement shall be
substantially in the form of Exhibit B-1 to this Agreement.
7. 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
11
<PAGE>
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 l
