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Exhibit 99.9a
ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT
THIS
ASSIGNMENT AND ASSUMPTION AGREEMENT (this “
Assignment ”), dated as of November 1, 2007 among
Morgan Stanley Mortgage Capital Holdings LLC, successor by
merger to Morgan Stanley Mortgage Capital Inc. (“
MSMCH ” or the “ Purchaser ”),
GMAC Mortgage, LLC, a Delaware limited liability company, as
successor by merger to GMAC Mortgage Corporation (“
Servicer ”), and LaSalle Bank National
Association (“ LaSalle ”), as trustee
(“ Trustee ”) of Morgan Stanley Mortgage
Loan Trust 2007-15AR (the “Trust”) and
acknowledged by Wells Fargo Bank, National Association, as
master servicer (in such capacity, the “ Master
Servicer ”) and as securities administrator (in such
capacity, the “ Securities Administrator ”)
and Morgan Stanley Capital I Inc. (the “
Depositor ”).
WHEREAS,
the Purchaser is the owner of various mortgage loans,
including the mortgage loans identified on Schedule 1 hereto
(the “ Specified Mortgage Loans
”);
WHEREAS,
the Servicer and the Morgan Stanley Mortgage Capital Inc. are
parties to a First Amended and Restated Servicing Agreement,
dated as of January 1, 2006 (the “ Servicing
Agreement ”), pursuant to which the Servicer has
agreed to service the Specified Mortgage Loans on behalf of
the Purchaser as “ Owner ” (as such term is
defined in the Servicing Agreement);
WHEREAS,
in connection with the servicing of the Mortgage Loans
hereunder, the Seller agrees that, from and after the date
hereof, each Mortgage Loan serviced hereunder will be subject
to the Servicing Agreement ;
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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The
Purchaser, as Owner, is the owner of all of the rights, title
and interest of the rights (the “ Servicing
Rights ”), in, to and under the Servicing Agreement
as it relates to the servicing of the Specified Mortgage
Loans. Pursuant to this Assignment, the Purchaser
hereby grants, transfers and assigns (i) its rights and
obligations, as “Owner” under the Servicing
Agreement with respect to the Specified Mortgage Loans other
than the Servicing Rights which the Owner explicitly retains
and (ii) any rights granted to the Purchaser as Owner under
the Servicing Agreement to the Depositor (the “ First
Assignment and Assumption ”), and the Depositor
hereby acknowledges the First Assignment and Assumption.
Immediately after giving effect to the First Assignment and
Assumption, the Depositor hereby grants, transfers and assigns
its rights and obligations in and under the First Assignment
and Assumption to the Trustee, on behalf of the Trust, and the
Trustee, on behalf of the Trust, hereby accepts such
assignment from the Depositor (the “ Second
Assignment and Assumption ”).
The
Servicer hereby acknowledges each of the First Assignment and
Assumption and the Second Assignment and
Assumption.
For
the purposes of this Assignment and the Servicing Agreement,
Schedule 1 hereto shall constitute a “ Mortgage Loan
Schedule ” as such term is defined in the Servicing
Agreement, and the assignment set forth herein shall
constitute a “Reconstitution” (as such term is
defined in the Servicing Agreement).
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2.
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Recognition of Trustee
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The
parties confirm that this Assignment includes the rights
relating to amendments or waivers under the Servicing
Agreement. Accordingly, the right of MSMCH, as
Owner, to consent to any amendment of the Servicing Agreement
and its rights concerning waivers as set forth in Section 16
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 Servicing Agreement with
respect thereto (other than the servicing of the Specified
Mortgage Loans, which shall be enforced by the Master
Servicer) by the Trustee on behalf of the Trust as the
successor to the Purchaser in its capacity as Owner under the
Servicing Agreement.
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 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 November 1, 2007 among the Depositor, Wells Fargo Bank,
National Association, as securities administrator and master
servicer, and the Trustee (the “ Pooling and
Servicing Agreement ”), (ii) each of the
representations, undertakings and agreements herein made on
the part of the Trust as 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 Trust as 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 Servicer or
MSMCH other than those contained in the Servicing 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, the Purchaser and the 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
Servicer hereby warrants and represents to, and covenants with, the
Purchaser and the Trustee that each of the representations and
warranties set forth in Section 6.01, other than the
representations and warranties set forth in Sections 6.01(a) and
6.01(c) of the Servicing Agreement are
true
and correct with respect to the Servicer as of the Closing Date (as
defined in the Pooling and Servicing Agreement). In
addition, the Servicer hereby warrants and represents to, and
covenants with, the Purchaser and the Trustee that (i) the Servicer
is duly organized, validly existing and in good standing as a
limited liability company under the laws of the state of Delaware
and the Servicer is duly licensed and qualified in all states which
such licensing or qualification is required to conduct its business
or perform its obligations hereunder and the services and is and
will remain in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to ensure the
enforceability of each Mortgage Loan and the servicing of the
Mortgage Loan in accordance with the terms of the Servicing
Agreement as modified by this Assignment, and (ii) the execution
and delivery of this Agreement by the Servicer and the performance
of and compliance with the terms of this Agreement will not violate
the Servicer’s organizational documents or constitute a
default under or result in a breach or acceleration of, any
material contract, agreement or other instrument to which the
Servicer is a party or which may be applicable to the Servicer or
its assets.
(e)
The
Servicer hereby agrees that, for so long as the Trust is reporting
under the Exchange Act, its obligations under Sections 31.04 and
31.05 of the Servicing Agreement, as modified by this Assignment,
shall survive the termination and removal of the Servicer as
servicer of the Specified Mortgage Loans in the Trust and continue
to apply for each calendar year during which the Servicer services
the Specified Mortgage Loans.
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 Servicing Agreement. Such rights will
include, without limitation, the right to terminate the Servicer
under the Servicing Agreement as provided 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 and the right to exercise certain rights of consent
and approval granted to the Purchaser under the Servicing
Agreement.
In
accordance with the Second Assignment and Assumption, the
Trustee, as Owner, hereby directs the Servicer to 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: 53188900, MSM 2007-15AR
In
accordance with the Second Assignment and Assumption, the
Trustee, as Owner, hereby directs the Servicer to 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 2007-15AR
Office
Number: (410) 884-2000
Telecopier:
(410) 715-2380
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5.
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Amendments to Servicing Agreement .
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(a) The
following definitions in Section 1 are revised as follows with
respect to the Specified Mortgage Loans:
a. “
Eligible Account ” shall have the meaning set
forth in the Pooling and Servicing Agreement.
b. “
Eligible Investments ” shall have the meaning of
Permitted Investments set forth in the Pooling and Servicing
Agreement.
c. “
Reg AB Indemnified Party” : each
Party described in the first sentence of Section 31.07(a) of
the Servicing Agreement.
d. “
Remittance Date ” shall mean no later
than 1:00 p.m., New York time, on the 18th day of each month,
or if such 18th day is not a Business Day, the first Business
Day immediately following such 18th day.
e. “
Servicing Fee Rate ” shall have the
meaning with respect to each Adjustable Rate Mortgage Loan,
0.375% per annum.
(b) Solely
with respect to the Specified Mortgage Loans, the words
“; provided, however,” to and including the end of
the penultimate sentence of paragraph (a) of Section 3.01 are
hereby deleted.
(c) Solely
with respect to the Specified Mortgage Loans, Section 3.04(ix)
of the Servicing Agreement is hereby amended and restated in
its entirety as follows:
“(ix) with
respect to each Principal Prepayment, the Prepayment Interest
Shortfall Amount, if any, for the month of
distribution. Such deposit shall be made from the
Servicer’s own funds in an amount up to the Compensating
Interest for the related month of distribution;
and”
(d) Solely
with respect to the Specified Mortgage Loans, the following
sentence is inserted as the last sentence of the second
paragraph of Section 3.08 of the Servicing Agreement, "All
Eligible Investments must mature no later than the Remittance
Date on which the amounts invested in such Eligible
Investments must be remitted to the Master Servicer on behalf
of the Owner (the Trust)."
(e) Solely
with respect to the Specified Mortgage Loans, the following
paragraph is hereby incorporated into the Servicing Agreement
as new Section 3.19:
“3.19
Fair Credit Reporting Act
The
Servicer, in its capacity as servicer for each Mortgage Loan,
agrees to fully furnish, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its
borrower credit files to Equifax, Experian and Trans Union
Credit Information Servicer (three of the credit
repositories), on a monthly basis.”
(f) Solely
with respect to the Specified Mortgage Loans, the following
deletions are hereby made to the fourth paragraph of Section
4.01:
a. the
words “following the Business Day” are hereby
deleted from the first sentence
and
b. the
word “second” is hereby deleted from the second
sentence.
(g) Solely
with respect to the Specified Mortgage Loans, the first
sentence of Section 5.04 is amended by adding the words
“(with a copy to the Master Servicer)” after the
word “Owner” and by replacing “2006”
with “2008”.
(h) Solely
with respect to the Specified Mortgage Loans, the first
sentence of Section 5.05 is amended by replacing
“2006” with “2008”.
(i) Solely
with respect to the Specified Mortgage Loans, Section 7.02 is
hereby amended by deleting each appearance of the word
“corporation” and (i) in the first paragraph
thereof, replacing it with the words “limited liability
company,” and (ii) in the second paragraph thereof,
replacing it with the word “Person.”
(j) Solely
with respect to the Specified Mortgage Loans, Section 8.01(b)
is hereby amended and restated as follows:
“(b) failure
on the part of the Servicer duly to observe or perform in any
material respect any other of the covenants or agreements on
the part of the Servicer set forth in this Agreement
(including but not limited to breach by Servicer of any one or
more of the representations, warranties and covenants of the
Servicer as set forth in Section 6.01 above) which continues
uncured for a period of thirty (30) days (except that (x) such
number of days shall be fifteen (15) days in the case of a
failure to pay any premium for any insurance policy required
to be maintained under this Agreement and (y) such number of
days shall be fourteen (14) calendar days with respect to the
reports required under Sections 31.04 and 31.05 and the last
paragraph of Section 25) after the earlier of the date on
which (i) written notice of such failure, requiring the same
to be remedied, shall have been given to the Servicer by the
Owner, or (ii) Servicer first becomes aware of such
failure.”
(k) Solely
with respect to the Specified Mortgage Loans, Section 20(a) of
the Servicing Agreement is hereby amended to add the Master
Servicer as an “Indemnified Party” in accordance
with such Section.
(l) Solely
with respect to the Specified Mortgage Loans, the following is
added to the end of Section 22(a):
“or
as necessary to provide the reports required by Section 4.05
of the Pooling and Servicing Agreement.”
(m) Solely
with respect to the Specified Mortgage Loans, Section 31.03(d)
of the Servicing Agreement is hereby amended and restated in
its entirety as follows:
“For
the purpose of satisfying its reporting obligation under the
Exchange Act with respect to any class of asset-backed
securities, the Servicer 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 Servicer, any
Subservicer that would be material to securityholders, (B) any
affiliations or relationships that develop following the
closing date of a Securitization Transaction between the
Servicer, 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, but only to the
extent that such affiliations or relationships do not include
the Purchaser, Depositor or any of their respective affiliates
as a party, (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 Servicer and (E) the Servicer’s entry into an
agreement with a Subcontractor to perform or assist the
Servicer with the performance of any of the Servicer’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.”
(n) Solely
with respect to the Specified Mortgage Loans, Section 31.03(f)
of the Servicing Agreement is hereby amended and restated in
its entirety as follows:
“In
addition to such information as the Servicer, 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 Servicer or any
Subservicer, the Servicer or such Subservicer, as applicable,
shall, to the extent the Servicer 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).
(o) Solely
with respect to the Specified Mortgage Loans, the following is
inserted as Section 31.03(g) of the Servicing
Agreement:
“The
Servicer 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 Servicer or any Subservicer
or the Servicer or such Subservicer’s performance
hereunder.”
(p) Solely
with respect to the Specified Mortgage Loans, Section 31.04 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 and any Depositor a
statement of compliance addressed to the Owner 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, and (ii) to the best of such officers’
knowledge, based on such review, the Servicer has fulfilled
all of its obligations under this Agreement and any applicable
Reconstitution Agreement in all material respects throughout
such calendar year (or applicable portion thereof) or, if
there has been a failure to fulfill any such obligation in any
material respect, specifically identifying each such failure
known to such officer and the nature and the status
thereof.
“In
the event that the Servicer fails to timely comply with this
Section 31.04, the Depositor shall use its commercially
reasonable efforts to obtain written statements or assurances
from the Commission, that such failure to provide the required
statement of compliance on a timely basis, and a one time
additional failure by the Servicer to comply with this Section
31.04, will not result in any adverse effect on the Depositor
or its affiliates with respect to any Shelf Registration on
Form S-3 of the Depositor or any of its
affiliates. Any costs or expenses incurred by the
Depositor or the Master Servicer in obtaining such statement
or assurances from the Commission shall be reimbursed to the
Depositor by the Servicer. In the event that the
Depositor is unable to receive any such assurances from the
Commission after the use of such commercially reasonable
efforts of the related year, such failure by the Servicer to
comply with this Section 31.04 shall be deemed an Event of
Default, automatically at such time, without notice
and without any cure period, and Depositor may, in addition to
whatever rights the Depositor may have under Section 20 of the
Servicing Agreement and at law or equity or to damages,
including injunctive relief and specific performance,
terminate all the rights and obligations of the Servicer under
this Agreement and in and to the Mortgage Loans and the
proceeds thereof without compensating the Servicer for the
same, as provided in Section 9 of the Servicing Agreement.
Such termination shall be considered with cause pursuant to
Section 9.01 of the Servicing Agreement. This
paragraph shall supersede any other provision in this
Agreement or any other agreement to the
contrary.”
(q) Solely
with respect to the Specified Mortgage Loans, Section 31.05(a)
is hereby amended by replacing the reference to
“2007” with “2008”.
(r) Solely
with respect to the Specified Mortgage Loans, Section
31.05(a)(iv) of the Servicing Agreement is hereby amended and
restated in its entirety as follows:
“deliver,
and cause each Subservicer and Subcontractor described in
clause (iii) above to deliver, to the Purchaser, the Master
Servicer, any Depositor and any other Person that will be
responsible for signing the certification (a “
Sarbanes Certification ”) required by Rules
13a-14(d) and 15d-14(d) under the Exchange Act (pursuant to
Section 302 of the Sarbanes-Oxley Act of 2002) on behalf of an
asset-backed issuer with respect to a
Securitization
Transaction
a certification, signed by an appropriate officer of the
Servicer, in
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