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Exhibit 99.5a
Execution Version
ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this “
Assignment ”), dated as of June 1, 2007 with an
effective date of June 29, 2007 (the “Effective
Date”), is entered into among Morgan Stanley Capital I
Inc., a Delaware corporation (the “ Depositor
”), Morgan Stanley Mortgage Capital Holdings LLC,
successor by merger to Morgan Stanley Mortgage Capital Inc.
(“ MSMCH ”), First National Bank of Nevada,
as seller (the “ Seller ”), and
acknowledged by LaSalle Bank National Association, as trustee
(the “ Trustee ”) of Morgan Stanley
Mortgage Loan Trust 2007-11AR (the “ Trust
”).
RECITALS
WHEREAS
MSMCH and the Seller have entered into a certain Master
Mortgage Loan Purchase and Warranties Agreement, dated as of
January 20, 2005 (the “ January Purchase
Agreement ”), a certain First Amended and Restated
Mortgage Loan Purchase and Warranties Agreement, dated as of
October 1, 2005 (the “ October Purchase Agreement
”), and a certain Second Amended and Restated Mortgage
Loan Purchase and Warranties Agreement, dated as of April 1,
2006 (the “ April Purchase Agreement ” and
together with the January Purchase Agreement and the October
Purchase Agreement, the “ Purchase Agreements
”), pursuant to which MSMCH has acquired certain
Mortgage Loans;
WHEREAS,
in connection with the transfer of the Mortgage Loans
hereunder, the Seller agrees that, from and after the date
hereof, each Mortgage Loan transferred hereunder will be
subject to the October Purchase Agreement;
WHEREAS
the Depositor has agreed, on the terms and conditions
contained herein, to purchase from MSMCH certain of the
Mortgage Loans (the “ Specified Mortgage Loans
”) which are subject to the provisions of the Purchase
Agreements and are listed on the mortgage loan schedule
attached as Exhibit I hereto (the “ Specified
Mortgage Loan Schedule ”); and
WHEREAS
the Trustee, on behalf of the Trust, has agreed, on the terms
and conditions contained herein, to purchase from the
Depositor the Specified Mortgage Loans;
NOW,
THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration (the receipt
and sufficiency of which are hereby acknowledged), the parties
agree as follows:
1.
Assignment and Assumption
(a)
On
and of the date hereof, MSMCH 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 Purchase Agreements to the extent
relating to the Specified Mortgage Loans, the Depositor hereby
accepts such assignment from MSMCH (the “ First Assignment
and Assumption ”), and the Seller hereby acknowledges the
First Assignment and Assumption.
MSMCH
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 MSMCH with respect to any
Mortgage Loans subject to the Purchase Agreements which are
not the Specified Mortgage Loans.
(b)
On
and of the date hereof, immediately after giving effect to the
First Assignment and Assumption, the Depositor hereby sells,
assigns and transfers to the Trustee, on behalf of the Trust, all
of
its
right, title and interest in the Specified Mortgage Loans and all
rights and obligations related thereto as provided under the
Purchase 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, MSMCH represents and warrants to the
Depositor and the Trustee that MSMCH 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 MSMCH’s acquisition of the
Specified Mortgage Loans.
2.
Recognition of Trustee
(a)
From
and after the date hereof, both MSMCH 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. It is the intention of the Seller, the
Depositor, the Trustee and MSMCH that this Assignment shall be
binding upon and inure to the benefit of the Depositor, the Trustee
and MSMCH 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 Purchase Agreements. Accordingly, the right of
MSMCH to consent to any amendment of the Purchase Agreements and
its rights concerning waivers as set forth in Section 22 of the
October Purchase Agreement shall be exercisable, to the extent any
such amendment or waiver affects the Specified Mortgage Loans or
any of the rights under the Purchase Agreements with respect
thereto, solely by the Trustee as assignee of MSMCH.
(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
i
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