|
Exhibit
99.17a
EXECUTION
VERSION
ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, DATED
OCTOBER 1, 2007, (“ Agreement
”)
with an effective
date of October 31, 2007 (the “ Effective Date
”) among
Morgan Stanley Mortgage Capital Holdings LLC, successor by merger
to Morgan Stanley Mortgage Capital Inc. (“
Assignor
”), Morgan
Stanley Capital I Inc. (“ Assignee
”) and Wells
Fargo Bank, National Association (in such capacity, the
“ Company
”) and
acknowledged by Lasalle Bank National Association (“
Lasalle
”), as
Trustee (“ 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
”):
WHEREAS,
the Assignor is the owner of various mortgage loans, including
the Mortgage Loans (hereinafter defined);
WHEREAS,
the Company and the Assignor have entered into a certain
Seller’s Warranties and Servicing Agreement (WFHM
2005-W61) dated as of August 1, 2005 (the “ August
2005 SWSA ”); a certain Seller’s Warranties
and Servicing Agreement (WFHM 2005-W92) dated as of November
1, 2005 (the “ November 2005 SWSA ”); a
certain Seller’s Warranties and Servicing Agreement
(WFHM 2006-W12) dated as of February 1, 2006 (the “
February 2006 SWSA ”); a certain Master
Seller’s Warranties and Servicing Agreement dated as of
April 1, 2006 (the “ SWSA ”); a certain
Assignment and Conveyance Agreement (WFHM 2006-W23) dated as
of April 27, 2006 (the “ April 2006 Conveyance
Agreement ”) and a certain Assignment and Conveyance
Agreement (WFHM 2006-W34) dated as of May 23, 2006 (the
“ May 2006 Conveyance Agreement ”),
pursuant to which the Assignor has acquired the Mortgage
Loans.
NOW,
THEREFORE, in consideration of the sum of TEN DOLLARS ($10.00)
and other valuable consideration the receipt and sufficiency
of which hereby are acknowledged, and of the mutual covenants
herein contained, the parties hereto hereby agree as
follows:
1.
Assignment and Conveyance
(a) The
Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title and interest of the
Assignor, as purchaser, in, to and under (i) those certain
mortgage loans listed on the schedule (the “
Mortgage Loan Schedule ”) attached hereto as
Schedule I (the “ Mortgage Loans ”) and
(ii) except as described below, the SWSA, solely insofar as
the SWSA relates to the Mortgage Loans. In
connection with the transfer of the Mortgage Loans hereunder,
the Company agrees that, from and after the date hereof, each
Mortgage Loan transferred hereunder will be subject to, and
serviced under, the SWSA. The Assignee hereby
accepts such assignment from the Assignor (the “
First Assignment and Assumption ”), and the
Company hereby acknowledges the First Assignment and
Assumption.
The Assignor specifically
reserves and does not assign to the Assignee hereunder any
and all right, title and interest in, to and under and any
obligations of the Assignor with respect to any mortgage
loans subject to the SWSA and the other agreements listed
above which are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this
Agreement.
(b) On
and as of the date hereof, immediately after giving effect to
the First Assignment and Assumption, the Assignee hereby
conveys, sells, grants, transfers and assigns to the Trustee,
on behalf of the Trust, all of the right, title and interest
in the Mortgage Loans and all rights and obligations related
thereto as provided under the SWSA to the extent relating to
the Mortgage Loans. The Trustee, on behalf of the Trust,
hereby accepts such assignment from the Assignee (the
“Second
Assignment
and Assumption”), and the Company hereby acknowledges
the Second Assignment and Assumption.
(c) On
and as of the date hereof, the Assignor represents and
warrants to the Assignee and the Trustee that the Assignor has
not taken any action that would serve to impair or encumber
the respective ownership interests of the Assignee and the
Trustee in the Mortgage Loans since the date of the
Assignor’s acquisition of the Mortgage
Loans.
2.
Recognition of the Company
From and after October 31,
2007 (the “ Closing Date ”), the Company
shall and does hereby recognize that the Assignor will
transfer the Mortgage Loans and assign its rights under the
SWSA to the Assignee and that the Assignee will thereafter
transfer the Mortgage Loans and assign its rights under the
SWSA and this Agreement to the Trust created pursuant to a
pooling and servicing agreement, dated as of October 1, 2007
(the “ Pooling Agreement ”), among the
Assignee, Wells Fargo Bank, National Association, as
securities administrator, the Master Servicer and
the Trustee. The Company hereby acknowledges and agrees that
from and after the date hereof (i) the Trust will be the
purchaser of the Mortgage Loans, (ii) the Company shall look
solely to the Trust for performance of any obligations of the
Assignor insofar as they relate to the enforcement of the
representations, warranties and covenants with respect to the
Mortgage Loans, (iii) the Trust (including the Trustee and,
with respect to the servicing of the Mortgage Loans, the
Master Servicer acting on the Trust’s behalf) shall
have all the rights and remedies available to the Assignor,
insofar as they relate to the Mortgage Loans, under the SWSA,
including, without limitation, the enforcement of the
document delivery requirements set forth in Section 2.01 of
the SWSA, and shall be entitled to enforce all of the
obligations of the Company thereunder insofar as they relate
to the Mortgage Loans, and (iv) all references to the
Purchaser (insofar as they relate to the rights, title and
interest and, with respect to obligations of the Purchaser,
only insofar as they relate to the enforcement of the
representations, warranties and covenants of the Company)
under the SWSA insofar as they relate to the Mortgage Loans,
shall be deemed to refer to the Trust. Neither the
Company nor the Assignor shall amend or agree to amend,
modify, waive, or otherwise alter any of the terms or
provisions of the SWSA which amendment, modification, waiver
or other alteration would in any way affect the Mortgage
Loans or the Company’s performance under the SWSA with
respect to the Mortgage Loans without the prior written
consent of the Trustee and the Master Servicer.
3. Notwithstanding
any statement to the contrary in Section 2 above, the Company
shall and does hereby acknowledge that the indemnification
provisions set forth in Section 3.03, Section 8.01 and the
first sentence of Section 9.01(f) of the SWSA shall be
available to and for the benefit of the Assignor, the Assignee
and the Trust (including the Trustee and the Master Servicer
acting on the Trust’s behalf), as provided in the
SWSA.
4.
Representations and Warranties
a. The
Assignee 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 Assignor or the Company other than those contained in
the SWSA or this Agreement.
b. Each
of the parties hereto represents and warrants that as of the
Effective Date it is duly and legally authorized to enter into
this Agreement.
c. Each
of the Assignor, Assignee and Company hereto represents and
warrants that as of the Effective Date this Agreement 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 with respect to the Company, similar laws administered by
the FDIC affecting the contract obligations of insured banks
and by general equitable principles (regardless of whether
such enforcement is considered in a proceeding in equity or at
law).
d. Subject
to Section 7(f) of this Agreement, the Company hereby
restates, as of the Closing Date (as defined in the Pooling
Agreement), the representations and warranties set forth in
Section 3.01 of the SWSA to and for the benefit of the
Assignee and the Trust, and by this reference incorporates
such representations and warranties herein, as of such Closing
Date.
5.
The Company hereby acknowledges that Wells Fargo Bank,
National Association has been appointed as the Master Servicer
of the Mortgage Loans pursuant to the Pooling Agreement and,
therefore, has the right to enforce all obligations of the
Company under the SWSA. Such rights will include, without
limitation, the right to terminate the Company under the SWSA
upon the occurrence of an event of default thereunder, the
right to receive all remittances required to be made by the
Company under the SWSA, the right to receive all monthly
reports and other data required to be delivered by the Company
under the SWSA, the right to examine the books and records of
the Company, indemnification rights and the right to exercise
certain rights of consent and approval relating to actions
taken by the Assignor. The Company shall make all
distributions under the SWSA 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
Company shall deliver all reports required to be delivered
under this 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
Telecopier:
(410) 715-2380
6.
Certain Matters Regarding the Trustee
Each
party hereto hereby agrees as follows:
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 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.
7.
Amendments to the SWSA
The
parties to this Agreement hereby agree to amend the SWSA as
follows:
|
|
a.
|
With
respect to Article I, a new definition of “Eligible
Account” is hereby incorporated, in alphabetical order, as
follows:
|
“
Eligible Account : Any of (i) an account or
accounts maintained with a federal or state chartered
depository institution or trust company that is an Qualified
Depository, 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 Article I, “Permitted Investments” shall
have the meaning of such term as defined in the Pooling and
Servicing Agreement.
|
|
|
c.
|
With
respect to Article I, the definition of “Qualified
Depository” is hereby amended and restate as
follows:
|
“Qualified
Depository”: 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
a Qualified Depository 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.
|
With
respect to Article I, “Servicing Fee Rate” is hereby
amended and restated as follows: “ Servicing
Fee Rate ”: With respect to each Mortgage
Loan, 0.25% per annum.
|
|
|
e.
|
With
respect to Article I, the definition of “Static Pool
Information” shall be inapplicable.
|
|
|
f.
|
With
respect to Article I, the definition of “Third-Party
Originator” shall be inapplicable.
|
|
|
g.
|
Section
3.01(i) (Selection Process), Section 3.01(k) (Sale Treatment) and
Section 3.01(m) (No Broker’s Fees) of the SWSA shall be
inapplicable.
|
|
|
h.
|
Section
3.02 shall be inapplicable.
|
|
|
i.
|
The
second paragraph of Section 4.01 of the SWSA is hereby amended by
deleting from the first sentence thereof the words “,
provided , however , that the Company shall not make
any future advances, other than Servicing Advances, with respect to
a Mortgage Loan”.
|
|
|
j.
|
The
second sentence of the first paragraph of Section 4.04 of the SWSA
is hereby amended and restated as follows:
|
“Such
Custodial Account shall be an Eligible Account established
with a Qualified Depository.”
|
|
k.
|
Section
4.05(vii) is hereby amended to add the term “Monthly
Advances,” prior to the term “Servicing
Advances.”
|
|
|
l.
|
The
following is added as the second paragraph of Section
4.09:
|
“Amounts
on deposit in the Custodial Account may at the option of the
Servicer be invested in Permitted Investments. Any
such Permitted Investment shall be made in the name of the
Servicer in trust for the benefit of the
Purchaser. All income on or gain realized from any
such Permitted Investment shall be for the benefit of the
Servicer and may be withdrawn from the Custodial Account at
any time by the Servicer. Any losses incurred in
respect of any such investment shall be deposited in the
Custodial Account, by the Servicer out of its own funds
immediately as realized.”
|
|
m.
|
The
words “and if the Mortgagor does not obtain such coverage,
the Company shall immediately force place the required coverage on
the Mortgagor’s behalf” in Section 4.10 are hereby
deleted.
|
|
|
n.
|
Section
4.13 is hereby deleted in its entirety and replaced with the
following:
|
“The
Company or its agent shall inspect the Mortgaged Property as
often as deemed necessary by the Company in accordance with
Accepted Servicing Practices or as may be required by the
primary mortgage guaranty insurer, to assure itself that the
value of the Mortgaged Property is being
preserved. The Company shall keep a record of each
such inspection and, upon request, shall provide the Purchaser
with an electronic report of each such
inspection.”
|
|
o.
|
The
words “on or before the Remittance Date” are hereby
deleted from the first sentence of Section 4.17.
|
|
|
p.
|
The
words “or on such other basis as is acceptable to Fannie Mae
and Freddie Mac and in accordance with the Fair Credit Reporting
Act and its implementing regulations” are hereby inserted in
Section 4.22 at the end thereof.
|
|
|
q.
|
The
second sentence of the second paragraph of Section 5.01 is hereby
amended and restated in its entirety as follows:
|
“Such
interest shall be deposited in the Custodial Account by the
Company on the date such late payment is made and shall cover
the period commencing with the day following the Business Day
on which such payment was due and ending with the Business Day
on which such payment is made, both
inclusive.”
|
|
r.
|
The
first paragraph of Section 5.02 is hereby amended and restated in
its entirety as follows:
|
“Not
later than the Remittance Report Date, the Company shall
furnish to the Master Servicer, on behalf of the Purchaser, in
an electronic form the information required by the reports
attached hereto as Exhibit II, or a form otherwise mutually
agreed to by the Company and the Master Servicer, with a trial
balance report attached thereto, as to the remittance period
ending on the last day of the preceding
month.”
|
|
s.
|
The
second paragraph of Section 6.02 is hereby deleted in its entirety
and replaced with the following:
|
“If
the Company satisfies or releases a Mortgage without first
having obtained payment in full of the indebtedness secured by
the Mortgage (other than as a result of a modification of the
Mortgage Loan or a liquidation of the Mortgaged Property
pursuant to the terms of this Agreement) or should the Company
otherwise prejudice any rights the Assignee may have under the
mortgage instruments, upon written demand of the Assignee, the
Company shall deposit in the Custodial Account the entire
outstanding principal balance, plus all accrued interest on
such Mortgage Loan within two (2) Business Days of its receipt
thereof. The Company shall maintain the Fidelity
Bond and Errors and Omissions Insurance Policy as provided for
in Section 4.12 insuring the Company against any loss it may
sustain with respect to any Mortgage Loan not satisfied in
accordance with the procedures set forth
herein.”
|
|
t.
|
Section
6.05 is hereby deleted in its entirety and replaced with the
following:
|
“[Reserved]”.
|
|
u.
|
The
third clause of the first sentence of Section 6.07(ii)
|
|
