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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 November 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
”), GreenPoint Mortgage Funding, Inc. 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 2007-15AR (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 First Amended
and Restated Mortgage Loan Sale And Servicing Agreement,
dated as of March 15, 2005 (the “ March Purchase
Agreement ), a certain Fourth Amended and Restated
Mortgage Loan Sale And Servicing Agreement, dated as of
December 1, 2005 (the " December Purchase Agreement ")
and a certain Fifth Amended and Restated Mortgage Loan
Sale And Servicing Agreement, dated as of June 1, 2006,
(the “ Agreement ,” and together with the
March Purchase Agreement, the December Purchase
Agreement and as further amended or modified to the date
hereof, 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; and, in connection with the
transfer of the Mortgage Loans hereunder, the Seller and
Servicer agree that, from and after the date hereof, each
Mortgage Loan transferred hereunder will be subject to, and
serviced under, the Agreement;
WHEREAS
the Depositor has agreed, on the terms and conditions
contained herein, to purchase from MSMCH certain of the
Mortgage Loans (the “ Specified Mortgage Loans
”) which are subject to the provisions of the 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 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 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, 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 Section 28 of the
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, and the Trustee (the “
Pooling and Servicing Agreement ”) for the
Morgan Stanley Mortgage Loan Trust 2007-15AR, Mortgage
Pass-Through Certificates, Series 2007-15AR, (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.
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 that is duly and
legally authorized to enter into this Assignment.
(c) Each
of the Depositor, MSMCH, Seller and Servicer 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 Sections 7.01 and 7.02 of the
Agreement, with respect to each of the Specified Mortgage
Loans that were sold by it under 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.
(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 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 relating to actions
taken by 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: 53188900, MSM 2007-15AR
The
Servicer shall deliver all reports required to be delivered to
the Purchaser 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 2007-15AR
Office
Number: (410) 884-2000
Telecopier:
(410) 715-2380
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5.
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Amendments to the Agreement
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The
parties to this Assignment hereby agree to amend the Agreement
as follows:
(a) With
respect to the Specified Mortgage Loans, the term
“Eligible Investments” as used in the Agreement
shall be replaced with the term “Permitted
Investments,” which shall have the meaning of such term
as defined in the Pooling and Servicing
Agreement.
(b) With
respect to the Specified Mortgage Loans, the term
“Eligible Account” shall have the following
meaning:
Eligible Account : 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 (x) highest short-term ratings of
Moody’s or Fitch, if Moody’s or Fitch is a Rating
Agency, and (y) a short-term rating of at least A-2 of S&P, if
S&P is a Rating Agency, in each case, 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) With
respect to the Specified Mortgage Loans, the defined term
“Eligible Institution” is hereby
inserted:
Eligible Institution : An institution having the (i)
(x) highest short-term ratings of Moody’s or Fitch, if
Moody’s or Fitch is a Rating Agency, and (y) a short-term
rating of at least A-2 of S&P, if S&P is a Rating Agency,
and (ii) 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) With
respect to the Specified Mortgage Loans, the term
“Servicing Fee Rate” is hereby amended and
restated in its entirety as follows:
Servicing Fee Rate : With respect to each Adjustable Rate
Mortgage Loan, 0.25% per annum.
(e) With
respect to the Specified Mortgage Loans, Subsection 11.01 is
hereby amended as follows:
(1) to
remove requiring 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, to the Master Servicer and to each Rating Agency of
any changes it intends to make to its policies and practices
related to the modifications of Mortgage Loans prior to its
implementation thereof.
(f) With
respect to the Specified Mortgage Loans, the second sentence
of the first paragraph of Subsection 11.04 of the Agreement is
hereby amended and restated as follows:
“Such
Custodial Account shall be an Eligible Account established
with a commercial bank, a savings bank or a savings and loan
association (which may be a depository affiliate of the
Servicer) which meets the guidelines set forth by Fannie Mae
or Freddie Mac as an eligible depository institution for
custodial accounts.”
(g) With
respect to the Specified Mortgage Loans, subsection
12.01(c)(ii), the reference to “ Subsection 11.20
” in the third line is revised to refer to “
Subsection 11.20 and Subsection 11.21
”.
(h) With
respect to the Specified Mortgage Loans, subsection 14.02 of
the Agreement is hereby deleted in its entirety.
(i) With
respect to the Specified Mortgage Loans, Exhibit 9A:
Standar
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