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Exhibit
99.16a
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 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
2007-14AR (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:
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1.
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Assignment and Assumption
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(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.
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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 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.
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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
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.
(c) Each
of the Depositor, MSMCH, Seller and Servicer hereto 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 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: 53183200, MSM
2007-14AR
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 2007-14AR
Telecopier:
(410) 715-2380
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5.
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Amendments to the Amended Agreement
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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, 0.25% 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
third paragraph of Section 4.01 of the Amended Agreement is
hereby amended by deleting the words “and the Seller has
obtained the prior written consent of the Purchaser,”
from its first sentence.
(i) Section
4.01 of the Amended Agreement is hereby further amended by
inserting the following sentence at the end of its third
paragraph:
“The
Seller shall 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.”
(j) 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.”
(k) 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.”
(l) 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. The preceding sentence notwithstanding, the
Purchaser and the Seller acknowledge and agree that the
purpose of reporting the information set forth in Exhibit
IIC-1 (the “Loan Modification Information”)
is to facilitate compliance by the Purchaser with certain
Rating Agency requirements, and the Purchaser and the Seller
both acknowledge that those requirements, and therefore what
constitutes Loan Modification Information, may change over
time. The Purchaser shall not exercise its right to
request delivery of information under these provisions other
than in good faith, or for purposes other than compliance with
Rating Agency requirements. The Seller agrees to
use its best efforts to deliver to the Purchaser and its
designees (including the Master Seller) all required Loan
Modification Information on a timely basis to permit the
Purchaser to comply with any related Rating Agency
requirements. To the extent that, as of any date
that the Seller would be required to deliver it, the Seller is
unable to provide any portion of the Loan Modification
Information, the Seller hereby agrees that it will state which
portion and the reasons for its inability to provide
it.”
(m) 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.”
(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:
“On or after the
receipt by the Seller of such written notice of termination,
all authority and power of the Seller, as servicer, under
this Agreement, whether with respect to the Mortgage Loans or
otherwise, shall pass to and be vested in the successor
appointed pursuant to Section
11.01.”
(p) 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
8.01(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;”
(q) 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
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