Exhibit 99.9(a)
EXECUTION COPY
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment"), dated as of January 1, 2007, is entered into among
Morgan
Stanley Capital I Inc., a Delaware corporation (the "Depositor"),
Morgan
Stanley Mortgage Capital Inc. ("MSMCI"), PHH Mortgage Corporation
(formerly
known as Cendant Mortgage Corporation) as a seller ("PHH" and, in
such
capacity, a "Seller") and servicer (in such capacity, the
"Servicer"),
Bishop's Gate Residential Mortgage Trust ("Bishop's Gate" and a
"Seller" and,
together with PHH, the "Sellers") and acknowledged by LaSalle Bank
National
Association, as trustee (the "Trustee") of Morgan Stanley Mortgage
Loan Trust
2007-1XS (the "Trust"), and Wells Fargo Bank, National Association,
as master
servicer (or any successor servicer, the "Master Servicer").
RECITALS
WHEREAS
MSMCI, the Sellers and the Servicer have entered into a certain
Third Amended and Restated Mortgage Loan Flow Purchase, Sale &
Servicing
Agreement, dated as of January 1, 2006 (as amended or modified to
the date
hereof, the "Agreement"), pursuant to which MSMCI has acquired
certain
Mortgage Loans pursuant to the terms of the Agreement and the
Servicer has
agreed to service such Mortgage Loans;
WHEREAS
the Depositor has agreed, on the terms and conditions contained
herein, to purchase from MSMCI certain of the Mortgage Loans (the
"Specified
Mortgage Loans") which are subject to the provisions of the
Agreement and are
listed on the mortgage loan schedule attached as Exhibit I hereto
(the
"Specified Mortgage Loan Schedule"); and
WHEREAS
the Trustee, on behalf of the Trust, has agreed, on the terms
and conditions contained herein, to purchase from the Depositor the
Specified
Mortgage Loans;
NOW,
THEREFORE, in consideration of the mutual promises contained
herein
and other good and valuable consideration (the receipt and
sufficiency of
which are hereby acknowledged), the parties agree as follows:
1.
Assignment
and Assumption
(a)
On and 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 Sellers hereby acknowledge the
First
Assignment and Assumption.
MSMCI specifically reserves and does not assign to the
Depositor
hereunder any and all right, title and interest in, to and under
and all
obligations of MSMCI with respect to any Mortgage Loans subject to
the
Agreement which are not the Specified Mortgage Loans.
(b)
On and of the
date hereof, immediately after giving effect to the
First Assignment and Assumption, the Depositor hereby sells,
assigns and
transfers to the Trustee, on behalf of the Trust, all of its right,
title and
interest in the Specified Mortgage Loans and all rights and
obligations
related thereto as provided under the Agreement to the extent
relating to the
Specified Mortgage Loans, and the Trustee, on behalf of the Trust,
hereby
accepts such assignment from the Depositor (the "Second Assignment
and
Assumption"), and the Sellers hereby acknowledge the Second
Assignment and
Assumption.
<PAGE>
(c)
On and as of the
date hereof, MSMCI represents and warrants to the
Depositor and the Trustee that MSMCI has not taken any action that
would serve
to impair or encumber the respective ownership interests of the
Depositor and
the Trustee in the Specified Mortgage Loans since the date of
MSMCI's
acquisition of the Specified Mortgage Loans.
2.
Recognition of Trustee
(a)
From and after
the date hereof, both MSMCI and the Sellers shall
note the transfer of the Specified Mortgage Loans to the Trustee,
in their
respective books and records and shall recognize the Trustee, on
behalf of the
Trust, as of the date hereof, as the owner of the Specified
Mortgage Loans,
and Servicer shall service the Specified Mortgage Loans for the
benefit of the
Trust pursuant to the Agreement, the terms of which are
incorporated herein by
reference. It is the intention of the Sellers, the Servicer, the
Depositor,
the Trustee and MSMCI that this Assignment shall be binding upon
and inure to
the benefit of the Depositor, the Trustee and MSMCI and their
respective
successors and assigns.
(b)
Without in any
way limiting the foregoing, the parties confirm
that this Assignment includes the rights relating to amendments or
waivers
under the Agreement. Accordingly, the right of MSMCI to consent to
any
amendment of the Agreement and its rights concerning waivers as set
forth in
Section 12.07 of the Agreement shall be exercisable, to the extent
any such
amendment or waiver affects the Specified Mortgage Loans or any of
the rights
under the Agreement with respect thereto (other than the servicing
of the
Specified Mortgage Loans, which shall be enforced by the Master
Servicer) by
the Trustee as assignee of MSMCI.
(c)
It is expressly
understood and agreed by the parties hereto that
(i) this Assignment is executed and delivered by LaSalle Bank
National
Association, not individually or personally but solely on behalf of
the Trust,
as the assignee, in the exercise of the powers and authority
conferred and
vested in it, as Trustee, pursuant to the pooling and servicing
agreement
dated as of the date hereof among the Depositor, the Master
Servicer, Wells
Fargo Bank, National Association, as securities administrator, and
the Trustee
(the "Pooling and Servicing Agreement") for the Morgan Stanley
Mortgage Loan
Trust 2007-1XS, Mortgage Pass-Through Certificates, Series
2007-1XS, (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 Sellers or MSMCI other
than those
contained in the Agreement or this Assignment.
(b)
Each of the
parties hereto represents and warrants that it is duly
and legally authorized to enter into this Assignment.
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(c)
Each of the
Depositor, MSMCI, Servicer and the Sellers 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)
Each Seller
hereby restates, as of the Closing Date (as defined in
the Pooling and Servicing Agreement referred to below), the
representations
and warranties set forth in the Agreement, other than the
representations and
warranties contained in Sections 3.03(4), (20), (21), (25), (31) or
(58) of
the Agreement, with respect to each of the Specified Mortgage Loans
that were
sold by it under the Agreement, to and for the benefit of the
Depositor, the
Trustee and the Trust, and by this reference incorporates such
representations
and warranties herein, as of such Closing Date.
(e)
The Servicer
hereby represents and warrants to the Assignee that,
to the extent the Mortgage Loans will be part of a REMIC, the
Servicer shall
service the Mortgage Loans and any real property acquired upon
default thereof
(including, without limitation, making or permitting any
modification, waiver
or amendment of any term of any Mortgage Loan) in accordance with
the
Servicing Agreement, but in no event in a manner that would (a)
cause the
REMIC to fail or qualify as a REMIC or (b) result in the imposition
of a tax
upon the REMIC (including, but not limited to, the tax on
prohibited
transactions as defined in Section 860F(a)(2) of the Code, the tax
on
contributions to a REMIC set forth in Section 860G(d) of the Code
and the tax
on "net income from foreclosure property" as set forth in Section
860G(c) of
the Code).
4.
The
Servicer hereby acknowledges that Wells Fargo Bank, National
Association has been appointed as the Master Servicer of the
Specified
Mortgage Loans pursuant to the Pooling and Servicing Agreement and,
therefore,
has the right to enforce all obligations of the Servicer under the
Agreement.
Such rights will include, without limitation, the right to
terminate the
Servicer under the Agreement upon the occurrence of an event of
default
thereunder, the right to receive all remittances required to be
made by the
Servicer under the Agreement, the right to receive all monthly
reports and
other data required to be delivered by the Servicer under the
Agreement, the
right to examine the books and records of the Servicer,
indemnification rights
and the right to exercise certain rights of consent and approval
relating to
actions taken by MSMCI. The Servicer shall make all distributions
under the
Agreement to the Master Servicer by wire transfer of immediately
available
funds to:
Wells Fargo Bank, National Association
ABA Number:
121-000-248
Account Name:
Corporate Trust Clearing
Account number:
3970771416
For further credit to:
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
Office Number: (410) 884-2000
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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 Sections 5.18(c)
and (d) of
the Agreement.
5.
Amendments
to the Agreement
The
parties to this Assignment hereby agree to amend the Agreement,
solely with respect to the Specified Mortgage Loans, as
follows:
(a)
The term
"Indemnified Party" is added as a new defined term in
Section
1.01 and shall have the following meaning:
"Indemnified Party:
each Party (other than each Seller and the
Servicer) described in the first sentence of Section 13.07(a)
hereof."
(b)
The definition
of "Permitted Investments" in Section 1.01 shall
have the
meaning of such term as defined in the Pooling and Servicing
Agreement.
(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 2:00 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)."
(d)
The definition
of "Servicing Criteria" in Section 1.01 is hereby
amended
and restated in its entirety as follows:
"Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB for which the Servicer is responsible
as
identified on Exhibit 14 attached hereto."
(e)
The penultimate
paragraph of Section 3.05 of the Agreement is
hereby
amended and restated as follows:
"With respect to any Mortgage Loans sold in a Securitization
Transaction where the Servicer remains as the servicer, the
Servicer agrees that on or before March 1st each year following
the year such Securitization Transaction occurs, the Servicer
shall deliver, and shall cause each subservicert to deliver, to
the depositor and the trustee, a certification in the form
attached as Exhibit 11 hereto, executed by a senior officer of
the
Servicer in charge of servicing for use in connection with any
Form 10-K to be filed with the Securities and Exchange
Commission
with respect to the securitization trust. The obligation to
provide such certification will terminate to the extent the
related securitization trust's obligation to file reports under
the Exchange Act, terminates."
(f)
The following is
inserted after the first sentence of the first
paragraph
of Section 5.04: "The Collection Account shall be an Eligible
Account."
(g)
The second
paragraph of Section 5.13 of the Agreement is hereby
amended
and restated in its entirety as follows:
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<PAGE>
"With respect to any REO Property, 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 (or its designee'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 "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."
(h)
The third
paragraph of Section 5.13 of the Agreement is hereby
deleted in
its entirety.
(i)
The first
paragraph of Section 6.02 of the Agreement is hereby
amended
and restated in its entirety as follows:
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<PAGE>
"Reporting. Not later than the 5th Business Day of each month,
the
Servicer shall make available to the Master Servicer in
mutually
agreed upon format and contents a statement in the form of
Exhbit
6.02(a) and Exhibit 6.02(b), certified by a Servicing Officer,
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 information regarding delinquencies on
Mortgage
Loans, indicating the number and aggregate principal amount of
Mortgage Loans which are either one (1), two (2) or three (3)
or
more months delinquent and the book value of any REO Property,
or
such other mortgage loan level data as agreed upon by the
Servicer
and
the Master Servicer, and the monthly reports substantially in
the form of Exhibits 6.02 (a) - (g) attached hereto (or in such
other formats mutually agreed upon between the Servicer and the
Master Servicer). Such monthly reports shall be available by
the
Servicer for the Purchaser on Servicer's secured web site. The
Servicer shall provide training, secured access and password(s)
to
the Purchaser on the operation of the website."
(j)
Section 7.04 of
the Agreement is hereby amended and restated in
its
entirety as follows:
"Annual Statement as to Compliance. The Servicer shall deliver
to
the Purchaser and the Master Servicer, on or before March 1st
each
year beginning March 1, 2006, an Officer's Certificate stating
that (a) a review of the activities of the Servicer during the
preceding calendar year and of its performance under this
Agreement has been made under such officer's supervision, and
(b)
to the best of such officer's knowledge, based on such review,
the
Servicer has fulfilled all its obligations under this Agreement
throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such
default
known to such officer and the nature and status thereof and the
action being taken by the Servicer to cure such default."
(k)
Section 7.05 of
the Agreement is hereby amended and restated in
its
entirety as follows:
"Annual Independent Public Accountants' Servicing Report. On or
before March 1st of each year beginning March 1, 2006, the
Servicer at its expense shall cause a firm of independent
public
accountants which is a member of the American Institute of
Certified Public Accountants to furnish a statement to the
Purchaser and the Master Servicer to the effect that such firm
has, with respect to the Servicer's overall servicing
operations,
examined such operations in accordance with the requirements of
the Uniform Single Attestation Program for Mortgage Bankers,
stating such firm's conclusions relating thereto."
(l)
Section 9.01 of
the Agreement is hereby amended to insert the
following
as the penultimate paragraph of such Section:
"In addition, the Servicer shall indemnify and hold harmless
the Master Servicer and each of its directors, officers,
employees, agents, and affiliates from and against any and all
claims, losses, damages, penalties, fines, forfeitures,
reasonable
legal fees and related costs, judgments and other costs and
expenses arising out of or based upon (a) any breach by the
Servicer of any if its obligations under hereunder, including
particularly its obligations to provide any Assessment of
Compliance, Attestation Report, Compliance Statement or any
information, data or materials provided by the Servicer
hereunder,
or (c) the negligence, bad faith or willful misconduct of the
Servicer
in connection with its
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performance hereunder. If the indemnification provided for
herein
is unavailable or insufficient to hold harmless the Master
Servicer, then the Servicer as a result of any claims, losses,
damages or liabilities incurred by the Master Servicer in such
proportion as is appropriate to reflect the relative fault of
the
Master Servicer on the one hand and the Servicer on the other."
(m)
The word "or" is
deleted from the end of Section 10.01(8), the
word "or"
is added at the end of Section 10.01(9) and the following
paragraph
is hereby incorporated into the Agreement as new Section
10.01(10):
"(10) failure by the Servicer to duly perform, within the
required
time period, its obligations under Sections 7.04 or 7.05 which
failure continues unremedied for a period of fourteen (14)
days;"
(n)
The following
paragraph is hereby incorporated into the Agreement
as new
Section 12.14:
"Third Party Beneficiary. For purposes of this Agreement,
including but not limited to Section 7.05, 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."
(o)
Section 13.03(d)
of the 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 Company, any Subservicer or any Third-Party
Originator, (B) any affiliations or relationships that develop
following the closing date of a Securitization Transaction
between
the Company, 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 Company, and (E) the
Company's entry into an agreement with a Subservicer to perform
or
assist in 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."
(p)
Section 13.03(f)
of the Agreement is hereby amended and restated
in its
entirety as follows:
"(f) 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 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
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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).
(g) 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
13.05(1)(a)(iv) of the 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 Securitization Transaction
a
certification, signed by an appropriate officer of the
Servicer,
in the form attached hereto as Exhibit 11."
(r)
Section 13.06(a)
of the Agreement is hereby amended to revise the
number of
calendar days in the first sentence of such Section from
"fifteen
(15)" to "thirty (30)."
(s)
Section 13.06(a)
of the 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.
(t)
The last
sentence of the last paragraph of Section 13.06 of the
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.
(u)
Section
13.07(a)(ii) of the 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
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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;"
(v)
The word "or" is
struck at the end of Section 13.07(a)(ii) of the
Agreement
and the following is inserted to Section 13.07(a) of the
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."
(w)
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 Agreement:
"(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)"
(x)
Exhibits 6.02(a)
- (g) and Exhibit 8.01 of the Agreement are
hereby
deleted and replaced with Exhibit II to this Assignment.
(y)
Exhibit 11 to
the Agreement is hereby deleted and replaced with
Exhibit
A-1 to this Assignment.
(z)
Exhibit 14 to
the Agreement is hereby deleted and replaced with
Exhibit
B-1 to this Assignment.
(aa)
Written notice
provided in compliance with Sections 13.03(d), (e)
or (f) of
the Agreement shall be substantially in the form of Exhibit
C-1 to
this Assignment.
9
<PAGE>
6.
Continuing
Effect
Except as
contemplated hereby, the Agreement shall remain in full force
and effect in accordance with its terms.
The
Servicer hereby agrees that, for so long as the Trust is
reporting
under the Exchange Act, its obligations under Sections 7.04, 7.05
and 13 of
the 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 or portion
thereof during
which the Servicer services the Specified Mortgage Loans.
7.
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.
8.
Notices
Any
notices or other communications permitted or required under the
Agreement to be made to the Depositor, MSMCI, the Master Servicer,
the
Sellers, the Servicer and the Trustee shall be made in accordance
with the
terms of the Agreement 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
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
10
<PAGE>
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 PHH and the Servicer:
PHH Mortgage Corporation
3000 Leadenhall Road
Mt. Laurel, NJ
08054
Attention: Vice
President of Servicing
In the
case of Bishop's Gate:
Bishop's Gate Residential Mortgage Trust
c/o PHH Mortgage Corporation
3000 Leadenhall Road
Mt. Laurel, NJ 08054 Attention: Vice President of Servicing
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
Agreement.
9.
Ratification
Except as modified and expressly amended by this Assignment,
the
Agreement is in all respects ratified and confirmed, and all terms,
provisions
and conditions thereof shall be and remain in full force and
effect.
10.
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.
11.
Definitions
Any
capitalized term used but not defined in this Assignment has
the
same meaning as in the Agreement.
[SIGNATURE PAGE FOLLOWS]
11
<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
PHH MORTGAGE CORPORATION
By: /s/ Karen Collins
-----------------------------------
Name: Karen
Collins
Title: Asst. Vice
President
BISHOP'S GATE RESIDENTIAL MORTGAGE
TRUST
By: PHH Mortgage Corporation, as
Administrator
By: /s/ Karen Collins
-----------------------------------
Name: Karen
Collins
Title: Asst. Vice
President
<PAGE>
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
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]
EXH. I-1
<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 Number
----------------------------------------------------------------------------------------------------------------------------------
SERV_INVESTOR_NBR
Contains a unique number as assigned by an
external servicer to identify a group of
loans in their system.
----------------------------------------------------------------------------------------------------------------------------------
BORROWER_FIRST_NAME
First Name of the Borrower.
----------------------------------------------------------------------------------------------------------------------------------
BORROWER_LAST_NAME
Last name of the borrower.
----------------------------------------------------------------------------------------------------------------------------------
PROP_ADDRESS
Street Name and Number of Property
----------------------------------------------------------------------------------------------------------------------------------
PROP_STATE
The state where the
property located.
----------------------------------------------------------------------------------------------------------------------------------
PROP_ZIP
Zip code where the property is located.
----------------------------------------------------------------------------------------------------------------------------------
BORR_NEXT_PAY_DUE_DATE
The date that the borrower's next payment is
MM/DD/YYYY
due to the servicer at the end of processing
cycle, as reported by Servicer.
----------------------------------------------------------------------------------------------------------------------------------
LOAN_TYPE
Loan Type (i.e. FHA, VA, Conv)
----------------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_FILED_DATE
The date a particular bankruptcy claim was
MM/DD/YYYY
filed.
----------------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_CHAPTER_CODE
The chapter under which the bankruptcy was
filed.
----------------------------------------------------------------------------------------------------------------------------------
BANKRUPTCY_CASE_NBR
The case number assigned by the court to the
bankruptcy filing.
----------------------------------------------------------------------------------------------------------------------------------
POST_PETITION_DUE_DATE
The payment due date once the bankruptcy has
MM/DD/YYYY
been approved by the courts
-------------------
