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Exhibit
99.11a
EXECUTION VERSION
ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this “
Assignment ”), dated as of October 1, 2007 is
entered into among Morgan Stanley Capital I Inc., a Delaware
corporation (the “ Depositor ”), Morgan
Stanley Mortgage Capital Holdings LLC, successor-in-interest
by merger to Morgan Stanley Mortgage Capital Inc. (“M
SMCH ”), Morgan Stanley Credit Corporation as
seller (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 2007-14AR (the “
Trust ”), and Wells Fargo Bank, National
Association, as master servicer (or any successor master
servicer, the “Master Servicer”).
RECITALS
WHEREAS
MSMCH, the Seller and the Servicer have entered into a certain
Third Amended And Restated Master Mortgage Loan Purchase
Agreement, dated as of November 1, 2005 (as amended or
modified to the date hereof, the “ Purchase
Agreement ”) and a certain Amended and Restated
Master Servicing Agreement, dated as of February 1,
2004 (as amended or modified to the date hereof,
the “ Servicing Agreement ” and, together
with the Initial Purchase Agreement and the Purchase
Agreement, the “ Agreements ”), pursuant to
which MSMCH has acquired certain Mortgage Loans pursuant to
the terms of the Agreements and the Servicer has agreed to
service such Mortgage Loans pursuant to the terms of the
Agreements;
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 Agreements
and are listed on the mortgage loan schedule attached as
Exhibit I hereto (the “ Specified Mortgage Loan
Schedule ”) in accordance with the provisions of the
Agreements as modified hereby; 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:
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1.
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Assignment and Assumption
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(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 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 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 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.
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2.
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Recognition of Trustee
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(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
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 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 Agreements. Accordingly, the right of MSMCH to
consent to any amendment of the Agreement and its rights concerning
waivers as set forth in Section 16 of the Purchase Agreement and
Section 12.02 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 Agreements 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, 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, (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.
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3.
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Representations and Warranties
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(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 Agreements or this
Assignment.
(b)
Each
of the Depositor, MSMCH, Master Servicer and Seller represents and
warrants that it is duly and legally authorized to enter into this
Assignment.
(c)
Each
of the Depositor, MSMCH, Servicer and Seller 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 the Closing Date (as defined in the
Pooling and Servicing Agreement), the representations and
warranties set forth in Section 5 of the Purchase Agreement and
Section 3.01 of the Servicing Agreement, with respect to each of
the Specified Mortgage Loans that were sold by it under the
Agreements, 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 will service the Mortgage Loans in accordance with the
terms and conditions of the Servicing Agreement and this
Assignment. 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 relating to actions taken by MSMCH. 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: 53183200, MSM
2007-14AR
The
Servicer shall 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 2007-14AR
Office
Number: (410) 884-2000
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 Article V of the Servicing Agreement.
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5.
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Amendments to the Servicing Agreement
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The
parties to this Assignment hereby agree to amend the Servicing
Agreement as follows:
(a)
“Custodial
Account” is amended and restated to mean:
The
separate trust account or accounts created and maintained pursuant
to Section 4.04 which shall be entitled “Morgan
Stanley Dean Witter Credit Corporation, in trust for Morgan Stanley
Mortgage Capital Inc.,” or such other title as is requested
by Owner. The Custodial Account shall be an Eligible
Account.
(b)
“Eligible
Account” is amended and restated to 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.
(c)
The
definition of “Eligible Institution” is hereby added to
Section 1.01 of the Servicing Agreement:
“
Eligible Institution ”: 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.
(d)
The
definition of “Permitted Investments” is hereby amended
and restated in its entirety as follows:
“(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.”
(e)
The
definition of “Principal Prepayment” is hereby added to
Section 1.01 of the Servicing Agreement:
“
Principal Prepayment ”: Any payment or
other recovery of principal on a Mortgage Loan which is
received in advance of its scheduled Due Date, including any
prepayment penalty, if applicable, or premium thereon and
which is not accompanied by an amount of interest representing
scheduled interest due on any date or dates in any month or
months subsequent to the month of
prepayment.”
(f)
The
definition of “Servicing Fee Rate” in Section 1.01 of
the Agreement is hereby amended and restated in its entirety as
follows:
“
Servicing Fee Rate ”: With respect to
the Adjustable Rate Mortgage Loans, 0.25% per
annum.”
(g)
Section
41.01 of the Servicing Agreement is hereby amended as
follows:
(1) to
remove the obligation to require the consent of the Owner
prior to the modification, in accordance with Accepted
Servicing Practices, of any Mortgage Loan that is in default
or with respect to which a default is reasonable foreseeable;
and
(2) to
require the Servicer to provide prior written notice to the
Depositor and to the Master Servicer of any changes it intends
to make to its policies and practices related to the
modifications of Mortgage Loans prior to its implementation
thereof.
(h)
For
the avoidance of doubt, Section 4.05(ii) allows the Servicer to use
Liquidation Proceeds, Condemnation Proceeds and Insurance Proceeds,
and with respect to REO Property, funds received as rental or
similar income to reimburse itself for unreimbursed Monthly
Advances, subject to the other limitations contained in such
Section 4.05(ii).
(i)
For
the avoidance of doubt, Section 4.05(iii) allows the Servicer to
use funds from the Custodial Account to reimburse itself for
unreimbursed Servicing Advances, subject to the other limitations
contained in such Section 4.05(iii).
(j)
The
first paragraph of Section 4.13 of the Servicing Agreement is
hereby amended and restated in its entirety as
follows:
“With
respect to any REO Property, the deed or certificate of sale
shall be taken in the name of the Owner, 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. With
respect to any REO Property, the Servicer shall take title as
“LaSalle Bank National Association, as Trustee, under
the Pooling and Servicing Agreement dated as of October 1,
2007. Pursuant to its efforts to sell such REO
Property, the Servicer shall either itself or through an agent
selected by the Servicer, manage, protect, conserve and
operate 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, management
and operation and protection of the interests of the Owner, or
its designee, rent the same, or any part thereof, as the
Servicer deems to be in the best interest of the Owner, or its
designee, for the period prior to the sale of such REO
Property. The Servicer shall prepare for and
deliver to the Owner, 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 Owner, 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 Owner, or its designee, for
filing.
In
the event that the Owner, 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 Owner, or its designee. In
that event, the Owner, or its designee, shall have been
supplied with an Opinion of Counsel to the effect that the
holding by the Owner, 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 Owner, 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 Owner, 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 Owner, 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 Owner, or its designee, with respect to the
imposition of any such taxes.”
(k)
The second sentence of the
third paragraph of Section 6.01 of the Servicing Agreement is
hereby amended and restated in its entirety as
follows:
“Such interest
shall be paid by Servicer to Owner on the date such late
payment is made and shall cover the period commencing with
the Business Day on which such payment was due and ending
with the Business Day on which such payment is made, both
inclusive.”
(l)
The
first paragraph of Section 6.02 of the Servicing Agreement is
hereby amended and restated in its entirety as
follows:
“
Statements to the Owner . Not later than the
10 th
calendar day of each month (or, if such 10th day is not a
Business Day, the following Business Day), the Servicer shall
forward to the Master Servicer in hard copy and electronic
format a statement 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 mortgage loan level data as
agreed upon by the Servicer and the Master Servicer and, for
Mortgage Loans having been foreclosed and liquidated, the
monthly reports substantially in the form of Exhibit C, as
applicable, attached hereto.”
(m)
Sections
7.04, 7.05 and 7.07 of the Servicing Agreement are hereby
deleted.
(n)
The
word “or” is added at the end of Sections 10.01(vi) and
10.01(vii) and the following paragraph is hereby incorporated into
the Servicing Agreement as new Section 10.01(viii):
“(viii) failure
by the Servicer to duly perform, within the required time
period, its obligations under Sections 7.04 and 7.05 of the
Purchase Agreement 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 Servicer 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;”
(o)
Section
11.01 of the Servicing Agreement is hereby amended and restated in
its entirety:
“
Termination
.
The respective obligations and responsibilities of Servicer
shall terminate upon: (i) the later of the final payment or
other liquidation (or any advance with respect thereto) of
the last Mortgage Loan or the disposition of all REO Property
and the remittance of all funds due hereunder, (ii) mutual
consent of Servicer and Owner in writing or (iii) a
resignation permitted by Section 9.04 hereof.
(p)
The
following paragraph is hereby incorporated into the Servicing
Agreement as new Section 12.15:
“ Third Party
Beneficiary . For purposes of this Agreement
and the Purchase Agreement, including but not limited to
Section 7.05 of the Purchase Agreement, any Master Servicer
shall be considered a third party beneficiary to this
Agreement and the Purchase Agreement, entitled to all the
rights and benefits accruing to any Master Servicer herein as
if it were a direct party to this Agreement and the Purchase
Agreement.”
(q)
Exhibit
C to the Servicing Agreement is hereby replaced in its entirety
with the Amended and Restated Exhibit C attached to this Assignment
as Exhibit II.
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6.
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Amendments to the Purchase Agreement
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The
parties to this Assignment hereby agree to amend the Purchase
Agreement as follows:
(a)
The
first sentence of Section 7.03(c) of the Purchase Agreement is
hereby amended and restated in its entirety as
follows:
“If
so requested by the Purchaser, the Seller shall provide such
information regarding the Seller, as servicer of the Mortgage
Loans, and each Subservicer (each of the Seller and each
Subservicer, for purposes of this paragraph, a
“Servicer”), as is requested for the purpose of
compliance with Items 1108, 1117 and 1119 of Regulation
AB.
(b)
Section
7.03(d) of the Purchase Agreement is hereby amended and restated in
its entirety as follows:
“For
the purpose of satisfying the reporting obligation under the
Exchange Act with respect to any class of asset-backed
securities, the Seller 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 Seller, any Subservicer or any
Third-Party Originator that would be material to
securityholders, (B) any affiliations or relationships that
develop following the closing date of a Securitization
Transaction between the Seller, 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, (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 Seller and (E) the Seller’s entry into an agreement
with a Subcontractor to perform or assist the Seller with the
performance of any of the Seller’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.”
(c)
Section
7.03 (e) (ii) of the Purchase Agreement is hereby amended and
restated in its entirety as follows:
“which
may be appointed as a successor to the Seller or any
Subservicer, the Seller shall provide to the Purchaser, and
any Master Servicer at least fifteen (15) calendar days prior
to the effective date of such succession or
appointment,”
(d)
Section
7.03 (f) of the Purchase Agreement is hereby amended and restated
in its entirety as follows:
“In
addition to such information as the Seller, as servicer, is
obligated to provide pursuant to other provisions of this
Agreement, not later than ten (10) 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 Seller or any Subservicer,
the Seller or such Subservicer, as applicable, shall, to the
extent the Seller 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).
(e)
The
following is inserted as 7.03 (g) of the Purchase
Agreement:
“The
Seller 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 Seller or any Subservicer or
the Seller or such Subservicer’s performance hereunder
as may be reasonably requested by the Purchaser, any Master
Servicer or any Depositor.”
(f)
Section
7.04 of the Purchase Agreement is hereby amended and restated in
its entirety as follows:
“On
or before March 1 of each calendar year, commencing in 2008,
the Servicer shall deliver to the Owner, any Master Servicer
and any Depositor a statement of compliance addressed to the
Owner, such Master Servicer 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,
an
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