Exhibit 99.8(a)
EXECUTION COPY
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 2007-1XS (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.
I-3
<PAGE>
(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
2
<PAGE>
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).
3
<PAGE>
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:
50981200, MSM 2007-1XS
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 2007-1XS
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
4
<PAGE>
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: 25 basis points (0.25%) 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):
5
<PAGE>
"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
6
<PAGE>
"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
7
<PAGE>
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
8
<PAGE>
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
9
<PAGE>
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 2007-1XS
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 2007-1XS
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 2007-1XS
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 2007-1XS
<PAGE>
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
Decimal
Format Comment
---------------------------------------
--------------------------------------------------------------
----------- ----------------
<S>
<C>
<C>
<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
