Exhibit 99.8(a)
Execution Copy
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT, dated February 1, 2006
(this
"Assignment"), among Morgan Stanley Mortgage Capital Inc. ("MSMCI"
or the
"Purchaser"), GMAC Mortgage Corporation, a Pennsylvania
corporation
("Servicer"), and LaSalle Bank National Association ("LaSalle"), as
trustee
("Trustee") of Morgan Stanley Mortgage Loan Trust 2006-3AR (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,
<PAGE>
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
February 1, 2006 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
<PAGE>
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 of the Servicing Agreement are true and
correct with
respect to the Servicer as of the date hereof.
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
For further credit to:
50896100, MSM 2006-3AR
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 2006-3AR
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.
<PAGE>
b. "Eligible Investments" shall have the meaning 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) 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."
(d) 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.
(e) 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".
(f) 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 one (1)
<PAGE>
calendar day with respect to the reports required under Sections
5.04 and 5.05
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 and (z)(i) Section 31.04, which shall be
governed by the
provisions therein and (ii) Section 31.05, with respect to which
such number
of days shall be fifteen (15) days;"
(g) 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.
(h) Solely
with respect to the Specified Mortgage Loans, the rights of
the Servicer pursuant to Section 9.02 are hereby deleted.
(i)
Section 20(a) of the Servicing Agreement is hereby amended to
add
the Master Servicer as an "Indemnified Party" in accordance with
such Section.
(j) 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."
(k)
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."
(l)
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
<PAGE>
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).
(m)
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."
(n)
Section 31.04 is hereby amended and restated in its entirety as
follows:
"On or
before March 15 of each calendar year, commencing in 2007, 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
<PAGE>
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 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."
(o)
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."
(p)
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.
(q)
The last sente
