Exhibit 99.14a
EXECUTION VERSION
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Assignment"),
dated
as of March 1, 2007, among Morgan Stanley Mortgage Capital Inc.
("MSMCI" or
the "Purchaser"), GMAC Mortgage, LLC, a Delaware limited liability
company, as
successor by merger to GMAC Mortgage Corporation ("Servicer"), and
LaSalle
Bank National Association ("LaSalle"), as trustee ("Trustee") of
Morgan
Stanley Mortgage Loan Trust 2007-6XS (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") and Morgan Stanley Capital I Inc.
(the
"Depositor").
WHEREAS, the Purchaser is the owner of various mortgage loans,
including the mortgage loans identified on Schedule 1 hereto (the
"Specified
Mortgage Loans");
WHEREAS, the Servicer and the Purchaser are parties to a
Servicing
Agreement, dated as of May 20, 2005 (the "Initial Servicing
Agreement") and a
First Amended and Restated Servicing Agreement, dated as of January
1, 2006
(the "the Servicing Agreement"), pursuant to which the Servicer has
agreed to
service the Specified Mortgage Loans on behalf of the Purchaser as
"Owner" (as
such term is defined in the Servicing Agreement);
WHEREAS, in connection with the servicing of the Mortgage Loans
hereunder, the Seller agrees that, from and after the date hereof,
each
Mortgage Loan serviced hereunder will be subject to the Servicing
Agreement;
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
The Purchaser, as Owner, is the owner of all of the rights, title
and
interest of the rights (the "Servicing Rights"), in, to and under
the
Servicing Agreement as it relates to the servicing of the Specified
Mortgage
Loans. Pursuant to this Assignment, the Purchaser hereby grants,
transfers and
assigns (i) its rights and obligations, as "Owner" under the
Servicing
Agreement with respect to the Specified Mortgage Loans other than
the
Servicing Rights which the Owner explicitly retains and (ii) any
rights
granted to the Purchaser as Owner under the Servicing Agreement to
the
Depositor (the "First Assignment and Assumption"), and the
Depositor hereby
acknowledges the First Assignment and Assumption. Immediately after
giving
effect to the First Assignment and Assumption, the Depositor hereby
grants,
transfers and assigns its rights and obligations in and under the
First
Assignment and Assumption to the Trustee, on behalf of the Trust,
and the
Trustee, on behalf of the Trust, hereby accepts such assignment
from the
Depositor (the "Second Assignment and Assumption").
The Servicer hereby acknowledges each of the First Assignment
and
Assumption and the Second Assignment and Assumption.
For the purposes of this Assignment and the Servicing
Agreement,
Schedule 1 hereto shall constitute a "Mortgage Loan Schedule" as
such term is
defined in the Servicing Agreement,
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and the assignment set forth herein shall constitute a
"Reconstitution" (as
such term is defined in the Servicing Agreement).
2. Recognition of Trustee
The
parties confirm that this Assignment includes the rights
relating
to amendments or waivers under the Servicing Agreement.
Accordingly, the right
of MSMCI, as Owner, to consent to any amendment of the Servicing
Agreement and
its rights concerning waivers as set forth in Section 16 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
Servicing
Agreement with respect thereto (other than the servicing of the
Specified
Mortgage Loans, which shall be enforced by the Master Servicer) by
the Trustee
on behalf of the Trust as the successor to the Purchaser in its
capacity as
Owner under the Servicing Agreement.
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 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
March 1, 2007 among the Depositor, Wells Fargo Bank, National
Association, as
securities administrator and master servicer, and the Trustee (the
"Pooling
and Servicing Agreement"), (ii) each of the representations,
undertakings and
agreements herein made on the part of the Trust as 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 Trust as 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 Servicer or MSMCI other
than those
contained in the Servicing 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.
(c) Each of the Depositor, the Purchaser and the Servicer
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
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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 Servicer hereby warrants and represents to, and
covenants
with, the Purchaser and the Trustee that each of the
representations and
warranties set forth in Section 6.01, other than the
representations and
warranties set forth in Sections 6.01(a) and 6.01(c) of the
Servicing
Agreement are true and correct with respect to the Servicer. In
addition, the
Servicer hereby warrants and represents to, and covenants with, the
Purchaser
and (i) the Trustee that the Servicer is duly organized, validly
existing and
in good standing as a limited liability company under the laws of
the state of
Delaware and the Servicer is duly licensed and qualified in all
states which
such licensing or qualification is required to conduct its business
or perform
its obligations hereunder and the services and is and will remain
in
compliance with the laws of each state in which any Mortgaged
Property is
located to the extent necessary to ensure the enforceability of
each Mortgage
Loan and the servicing of the Mortgage Loan in accordance with the
terms of
the Servicing Agreement as modified by this Assignment, and (ii)
the execution
and delivery of this Agreement by the Servicer and the performance
of and
compliance with the terms of this Agreement will not violate the
Servicer's
organizational documents or constitute a default under or result in
a breach
or acceleration of, any material contract, agreement or other
instrument to
which the Servicer is a party or which may be applicable to the
Servicer or
its assets.
(e) The Servicer hereby agrees that, for so long as the Trust
is
reporting under the Exchange Act, its obligations under Sections
5.04 and 5.05
of the Initial Servicing Agreement and under Sections 31.04 and
31.05 of the
Servicing Agreement, as modified by this Assignment, shall survive
the
termination and removal of the Servicer as servicer of the
Specified Mortgage
Loans in the Trust and continue to apply for each calendar year
during which
the Servicer services the Specified Mortgage Loans.
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 as provided
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 and the
right to
exercise certain rights of consent and approval granted to the
Purchaser under
the Servicing Agreement.
In accordance with the Second Assignment and Assumption, the
Trustee,
as Owner, hereby directs the Servicer to 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
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For further credit to:
50996400, MSM 2007-6XS
In accordance with the Second Assignment and Assumption, the
Trustee,
as Owner, hereby directs the Servicer to 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 2007-6XS
Office Number: (410)
884-2000
Telecopier: (410) 715-2380
5. Amendments to Servicing Agreement.
(a) The following definitions in Section 1 are revised as
follows
with respect to the Specified Mortgage Loans:
a. "Eligible Account" shall have the meaning set forth in
the Pooling and Servicing Agreement.
b. "Eligible Investments" shall have the meaning of
Permitted Investments set forth in the Pooling and Servicing
Agreement.
c. "Indemnified Party": each Party described in the first
sentence of Section 31.07(a) of the Servicing Agreement.
d. "Remittance Date" shall mean 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 first Business Day immediately following such
18th day.
(b) Solely with respect to the Specified Mortgage Loans, the words
";
provided, however," to and including the end of the penultimate
sentence of
paragraph (a) of Section 3.01 are hereby deleted.
(c) Solely with respect to the Specified Mortgage Loans, the
following sentence is inserted as the last sentence of the second
paragraph of
Section 3.08 of the Servicing Agreement, "All Eligible Investments
must mature
no later than the Remittance Date on which the amounts invested in
such
Eligible Investments must be remitted to the Trust."
(d) Section 3.04(ix) of the Servicing Agreement is hereby amended
and
restated in its entirety as follows:
"(ix) with respect to each Principal Prepayment, the Prepayment
Interest Shortfall Amount, if any, for the month of
distribution.
Such deposit shall be made from the Servicer's own funds in an
amount
up to the Compensating Interest for the related month of
distribution; and"
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(e) The following paragraph is hereby incorporated into the
Servicing
Agreement as new Section 3.19:
"3.19 Fair Credit Reporting Act
The Servicer, in its capacity as servicer for each Mortgage
Loan, agrees to fully furnish, in accordance with the Fair
Credit
Reporting Act and its implementing regulations, accurate and
complete
information (e.g., favorable and unfavorable) on its borrower
credit
files to Equifax, Experian and Trans Union Credit Information
Servicer (three of the credit repositories), on a monthly
basis."
(f) Solely with respect to the Specified Mortgage Loans, the
following deletions are hereby made to the fourth paragraph of
Section 4.01:
a. the words "following the Business Day" are hereby deleted
from the first sentence and
b. the
word "second" is hereby deleted from the second
sentence.
(g) Solely with respect to the Specified Mortgage Loans, the
first
sentence of Section 5.04 is amended by adding the words "(with a
copy to the
Master Servicer)" after the word "Owner".
(h) Solely with respect to the Specified Mortgage Loans, Section
7.02
is hereby amended by deleting each appearance of the word
"corporation" and
(i) in the first paragraph thereof, replacing it with the words
"limited
liability company," and (ii) in the second paragraph thereof,
replacing it
with the word "Person."
(i) Solely with respect to the Specified Mortgage Loans,
Section
8.01(b) is hereby amended and restated as follows:
"(b) failure on the part of the Servicer duly to observe or
perform
in any material respect any other of the covenants or agreements on
the part
of the Servicer set forth in this Agreement (including but not
limited to
breach by Servicer of any one or more of the representations,
warranties and
covenants of the Servicer as set forth in Section 6.01 above) which
continues
uncured for a period of thirty (30) days (except that (x) such
number of days
shall be fifteen (15) days in the case of a failure to pay any
premium for any
insurance policy required to be maintained under this Agreement and
(y) such
number of days shall be fourteen (14) calendar days with respect to
the
reports required under Sections 31.04 and 31.05 and the last
paragraph of
Section 25) after the earlier of the date on which (i) written
notice of such
failure, requiring the same to be remedied, shall have been given
to the
Servicer by the Owner, or (ii) Servicer first becomes aware of such
failure."
(j) Solely with respect to the Specified Mortgage Loans, the
rights
of the Servicer pursuant to clause (iv) of Section 9.01(a) are
hereby deleted.
(k) Solely with respect to the Specified Mortgage Loans, the
rights
of the Servicer pursuant to Section 9.02 are hereby deleted.
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(l) Section 20(a) of the Servicing Agreement is hereby amended to
add
the Master Servicer as an "Indemnified Party" in accordance with
such Section.
(m) Solely with respect to the Specified Mortgage Loans, the
following is added to the end of Section 22(a):
"or as necessary to provide the reports required by Section 4.05
of
the Pooling and Servicing Agreement."
(n) Section 31.03(d) of the Servicing Agreement is hereby amended
and
restated in its entirety as follows:
"For the purpose of satisfying its 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 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, but only to the extent that such
affiliations or relationships do not include the Purchaser,
Depositor
or any of their respective affiliates as a party, (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."
(o) Section 31.03 (f) of the Servicing 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);
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(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).
(p) The following is inserted as 31.03 (g) of the Servicing
Agreement:
"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."
(q) Section 31.04 is hereby amended and restated in its entirety
as
follows:
"On or before March 1 of each calendar year, commencing in 2008,
the
Servicer shall deliver to the Owner and any Depositor a statement
of
compliance addressed to the Owner 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 31.04, 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 31.04, 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 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 31.04 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 20 of the Servicing 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
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the proceeds thereof without compensating the Servicer for the
same,
as provided in Section 9 of the Servicing Agreement. Such
termination
shall be considered with cause pursuant to Section 9.01 of the
Servicing Agreement. This paragraph shall supersede any other
provision in this Agreement or any other agreement to the
contrary."
(r) Section 31.05(a)(iv) of the Servicing 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 I. 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."
(s) The third sentence of Section 31.06(a) is amended to require
the
Company to cause any Subservicer or Subcontractor to comply with
all
of the following Sections of the Servicing Agreement: Section
31.02,
Section 31.03(c), (e), (f) and (g), Section 31.04, Section
31.05,
Section 31.06(a) and Section 31.07.
(t) The last sentence of the second paragraph of Section 31.06(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
31.05.
(u) Section 31.07(a)(ii) of the Servicing Agreement is hereby
amended
and restated in its entirety as follows:
"(ii) any breach by the Company under this Section 31,
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 Article II, including any failure by the Company to
identify
pursuant to Section 31.06(b) any Subcontractor "participating in
the
servicing function" within the meaning of Item 1122 of
Regulation
AB;"
(v) The word "or" is struck at the end of Section 31.07(a)(ii) of
the
Servicing Agreement, the word "or" is added at the end of
Section
31.07(a)(iii) of the Servicing Agreement, and the following is
inserted to Section 31.07(a) of the Servicing Agreement:
"(iv) negligence, bad faith or wil
