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Exhibit 99.6a
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 ”), Wachovia Mortgage Corporation
as seller (“ Wachovia ” and, in such
capacity, the “ Seller ”) and servicer (in
such capacity, the “ Servicer ”), and
acknowledged by LaSalle Bank National Association, as trustee
(the “ Trustee ”) of Morgan Stanley
Mortgage Loan Trust 2007-11AR (the “ Trust
”), and Wells Fargo Bank, National Association, as
master servicer (or any successor master servicer, the
“Master Servicer”).
RECITALS
WHEREAS
Morgan Stanley Mortgage Capital Inc., the Seller and the
Servicer have entered into a certain Seller’s Purchase,
Warranties and Servicing Agreement, dated as of September 1,
2004 as amended by that certain First Amended and Restated
Seller’s Purchase, Warranties and Servicing Agreement,
dated as of June 1, 2006 (the “ Amended Agreement
”), each as supplemented by the Amended and Restated
Regulation AB Compliance Addendum (the “ Reg AB
Addendum ”), dated as of April 17, 2006, (as further
amended or modified to the date hereof, the “
Agreement ”), pursuant to which MSMCH 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 MSMCH 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 as 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 Agreement 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 Agreement which are not the
Specified Mortgage Loans.
(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 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 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, and Servicer shall service the Specified
Mortgage Loans for the benefit of the Trust pursuant to the
Agreement, as modified hereby, the terms of which are incorporated
herein by reference. It is the intention of the Seller, the
Servicer, 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 Agreement. Accordingly, the right of MSMCH to
consent to any amendment of the Agreement and its rights concerning
waivers as set forth in Sections 11.02 and 8.02 of the Amended
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 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 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 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
MSMCH other than those contained in the Agreement or this
Assignment.
(b)
Each
of the parties hereto represents and warrants as of the Effective
Date that it is duly and legally authorized to enter into this
Assignment.
(c)
Each
of the Depositor, MSMCH, Seller and Servicer hereto represents and
warrants as of the Effective Date 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 makes, as of the Closing Date (as defined in the
Pooling and Servicing Agreement referred to below), the
representations and warranties set forth in Section 3.01 of 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 and the Seller
hereby makes, as of the closing date (as defined in the Amended
Agreement referred to below), the representations and warranties
set forth in Section 3.02 of the Amended 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
Company 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 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 of MSMCH. 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: 53158400 , MSM
2007-11AR
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 2007-11AR
Telecopier:
(410) 715-2380
5.
Amendments to the Amended Agreement
The
parties to this Assignment hereby agree to amend the Amended
Agreement as follows:
(a)
With
respect to the Specified Mortgage Loans, “Eligible
Account” shall mean:
Any
of (i) an account or accounts maintained with a federal or state
chartered depository institution or trust company that is an
Eligible Institution, 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 each Rating Agency at the time any amounts are held on
deposit therein, or (ii) a trust account or accounts
maintained with the corporate trust department of a federal
depository institution or state-chartered depository institution
subject to the regulations regarding fiduciary funds on deposit
similar to Title 12 of the U.S. Code of Federal Regulations Section
9.10(b) which, in either case, has corporate trust powers and is
acting in its fiduciary capacity, or (iii) any other account
acceptable to each Rating Agency, as evidenced by a signed writing
delivered by each Rating Agency. Eligible Accounts may bear
interest, and may include, if otherwise qualified under this
definition, accounts maintained with the Trustee, the Paying Agent,
the Securities Administrator or the Master Servicer.
(b)
With
respect to the Specified Mortgage Loans, “Eligible
Institution” shall mean:
An
institution having the highest short-term debt rating, and one of
the two highest long-term debt ratings of the Rating Agencies or
the approval of the Rating Agencies. Upon a downgrade in
the rating of an Eligible Institution at which an Eligible Account
is held below the required ratings set forth in the definition of
Eligible Account, within 30 days of such downgrade, such account
will be transferred to an account meeting the requirements of the
definition of Eligible Account; provided, however, that this
transfer requirement may be waived by the applicable Rating
Agency.
(c)
With
respect to the Specified Mortgage Loans, “Permitted
Investments” shall mean at any time, any one or more of the
following obligations and securities:
(i) obligations
of the United States or any agency thereof, provided that such
obligations are backed by the full faith and credit of the United
States;
(ii) general
obligations of or obligations guaranteed by any state of the United
States or the District of Columbia receiving the highest long-term
debt rating of each Rating Agency, or such lower rating as shall
not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced
by a signed writing delivered by each Rating Agency;
(iii) commercial
or finance company paper which is then receiving the highest
commercial or finance company paper rating of each Rating
Agency rating such paper, or such lower rating as shall not
result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as
evidenced by a signed writing delivered by each Rating
Agency;
(iv) certificates
of deposit, demand or time deposits, or bankers’ acceptances
issued by any depository institution or trust company incorporated
under the laws of the United States or of any state thereof and
subject to supervision and examination by federal and/or state
banking authorities, provided that the commercial paper and/or
long-term unsecured debt obligations of such depository institution
or trust company (or in the case of the principal depository
institution in a holding company system, the commercial paper or
long-term unsecured debt obligations of such holding company, but
only if Moody’s is not the applicable Rating Agency) are then
rated one of the two highest long-term and the highest short-term
ratings of each Rating Agency for such securities, or following a
downgrade, withdrawal, or suspension of such institution’s
rating, each account should promptly (and in any case within not
more than 10 calendar days) be moved to a qualifying institution or
to one or more segregated trust accounts in the trust department of
such institution, if permitted unless such lower ratings as shall
not result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced
by a signed writing delivered by each Rating Agency;
(v) guaranteed
reinvestment agreements issued by any bank, insurance company or
other corporation acceptable to the Rating Agencies at the time of
the issuance of such agreements, as evidenced by a signed writing
delivered by each Rating Agency;
((vi) repurchase
obligations with respect to any security described in clauses (i)
and (ii) above, in either case entered into with a depository
institution or trust company (acting as principal) described in
clause (iv) above;
(vii) securities
(other than stripped bonds, stripped coupons or instruments sold at
a purchase price in excess of 115% of the face amount thereof)
bearing interest or sold at a discount issued by any corporation
incorporated under the laws of the United States or any state
thereof which, at the time of such investment, have one of the two
highest ratings of each Rating Agency (except if the Rating Agency
is Moody’s, such rating shall be the highest commercial paper
rating of Moody’s for any such series), or such lower rating
as shall not result in the downgrading or withdrawal of the ratings
then assigned to the Certificates by the Rating Agencies, as
evidenced by a signed writing delivered by each Rating
Agency;
(viii) interests
in any money market fund which at the date of acquisition of the
interests in such fund and throughout the time such interests are
held in such fund has the highest applicable rating by each Rating
Agency rating such fund or such lower rating as shall not result in
a change in the rating then assigned to the Certificates by each
Rating Agency, as evidenced by a signed writing delivered by each
Rating Agency, including funds for which the Trustee, the Master
Servicer, the Securities Administrator or any of its Affiliates is
investment manager or adviser;
(ix) short-term
investment funds sponsored by any trust company or national banking
association incorporated under the laws of the United States or any
state thereof which on the date of acquisition has been rated by
each applicable Rating Agency in their respective highest
applicable rating category or following a downgrade, withdrawal, or
suspension of such institution’s rating, each account should
promptly (and in any case within not more than 10 calendar days) be
moved to a qualifying institution or to one or more segregated
trust accounts in the trust department of such institution, if
permitted unless such lower rating as shall not result in a change
in the rating then specified stated maturity and bearing interest
or sold at a discount acceptable to each Rating Agency as shall not
result in the downgrading or withdrawal of the ratings then
assigned to the Certificates by the Rating Agencies, as evidenced
by a signed writing delivered by each Rating Agency;
and
(x) such
other investments having a specified stated maturity and bearing
interest or sold at a discount acceptable to the Rating Agencies as
shall not result in the downgrading or withdrawal of the ratings
then assigned to the Certificates by the Rating Agencies, as
evidenced by a signed writing delivered by each Rating
Agency;
provided,
that no such instrument shall be a Permitted Investment if (i) such
instrument evidences the right to receive interest only payments
with respect to the obligations underlying such instrument or (ii)
such instrument would require the Depositor to register as an
investment company under the Investment Company Act of 1940, as
amended.
(d)
The
definition of “Remittance Date” in Section 1.01 of the
Amended Agreement is hereby amended and restated in its entirety as
follows:
“
Remittance Date : The 18th day of each month
(or, if such 18th day is not a Business Day, the following
Business Day).”
(e)
The
definition of “Servicing Fee” in Section 1.01 of
the Amended Agreement is hereby amended and restated in its
entirety as follows:
“The
Servicing Fee with respect to each Mortgage Loan for any
calendar month (or a portion thereof) shall be 1/12 of the
product of (i) the Scheduled Principal Balance of the Mortgage
Loan and (ii) the Servicing Fee Rate applicable to such
Mortgage Loan. Such fee shall be payable monthly,
computed on the basis of the same principal amount and period
respecting which any related interest payment on a Mortgage
Loan is computed.”
(f)
The
definition of “Servicing Fee Rate” in Section 1.01 of
the Amended Agreement is hereby amended and restated in its
entirety as follows:
“
Servicing Fee Rate ”: With respect to
the adjustable rate Mortgage Loans, 0.250% per
annum.”
(g)
Subsection
3.02(d) of the Amended Agreement is hereby amended and restated in
its entirety as follows:
“As
of the Closing Date, none of the Mortgage Loans are
contractually past due by more than 30
days;”
(h)
The
following paragraphs are hereby incorporated into the Amended
Agreement at the end of Section 4.13:
“The
Seller 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 Seller
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.
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 Seller has agreed
to indemnify and hold harmless the Purchaser, or its designee,
with respect to the imposition of any such
taxes.”
(i)
The
second paragraph of Section 5.01 of the Amended Agreement is hereby
amended and restated in its entirety as follows:
“With
respect to any remittance received by the Purchaser after the
Business Day on which such payment was due, the Seller 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 Seller on the date such late payment is made and shall
cover the period commencing with such Business Day on which
such payment was due and ending with the Business Day on which
such payment is made, both inclusive. Such interest shall be
remitted along with the distribution payable on the next
succeeding Remittance Date. The payment by the Seller of any
such interest shall not be deemed an extension of time for
payment or a waiver of any Event of Default by the
Seller.”
(j)
The
first paragraph of Section 5.02 of the Amended Agreement is hereby
amended and restated in its entirety as follows:
“Not
later than the 5 th
Business Day of each month (or if such 5 th day
is not a Business Day, the Business Day next succeeding such 5
th day),
the Seller shall furnish to the Master Servicer in electronic
form mortgage loan level data as mutually agreed upon by the
Seller and the Master Servicer and the monthly reports
substantially in the form of Exhibit J attached hereto with
respect to the Mortgage Loans
and
the period from but including the first day of the preceding
calendar month through but excluding the first day of such
month.”
(k)
The
first paragraph of Section 5.03 of the Amended Agreement is hereby
amended and restated in its entirety as follows:
“Not
later than the close of business on the Business Day preceding
each Remittance Date, the Seller shall either (a) deposit in
the Custodial Account from its own funds an amount equal to
the principal and interest portion of all Monthly Payments
(with interest adjusted to the Mortgage Loan Remittance Rate)
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 4.01, (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 5.03, used by the Seller in
discharge of any such Monthly Advance or (c) make Monthly
Advances in the form of any combination of (a) or (b)
aggregating the total amount of Monthly Advances to be made,
whether or not deferred pursuant to Section 4.01, which were
due on a Mortgage Loan on the immediately preceding Due Date
and delinquent at the close of business on the related
Determination Date.”
(l)
The
word “or” is deleted from the end of Section 8.01(vii),
the word “or” is added at the end of Section 8.01(viii)
and the following paragraph is hereby incorporated into the Amended
Agreement as new Section 10.01(ix):
“(ix) failure
by the Seller to duly perform, within the required time
period, its obligations under Section 2.04 and Section 2.05 of
the Reg AB Addendum which failure continues unremedied for a
period of fourteen (14) days after the date on which written
notice of such failure, requiring the same to be remedied,
shall have been given to the Seller by any party to this
Agreement or by any master servicer responsible for master
servicing the Mortgage Loans pursuant to a securitization of
such Mortgage Loans;”
(m)
The
following paragraph is hereby incorporated into the Amended
Agreement as new Section 11.19:
“
Third Party Beneficiary . For purposes of
this Agreement, including but not limited to Section 2.04 and
Section 2.05, respectively, of the Reg AB Addendum, any Master
Servicer shall be considered a third party beneficiary to this
Agreement (including the Reg AB Addendum and any other
amendments or modifications thereto) entitled to all the
rights and benefits accruing to any Master Servicer herein as
if it were a direct party to this
Agreement.”
(n)
Section
6.04 and Section 6.05 are hereby deleted from the Amended
Agreement, it being understood that they are superseded by Section
2.04 and Section 2.05, respectively, of the Reg AB
Addendum.
(o)
The
second sentence in Section 8.01 of the Amended Agreement is hereby
replaced by the following:
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