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Exhibit 99.5a
Execution Version
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, (the “
Assignment ”) dated as of November 1, 2007, 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 ”), Central
Mortgage Company, an Arkansas 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”).
WHEREAS
MSMCH is the owner of various mortgage loans, including the
mortgage loans identified on Schedule 1 hereto (the “
Specified Mortgage Loans ”) and the Servicer has
previously purchased the servicing rights with respect to the
Specified Mortgage Loans;
WHEREAS,
in connection with the servicing of the Specified Mortgage
Loans, the Servicer agrees that, from and after the date
hereof, each Specified Mortgage Loan will be serviced pursuant
to that certain servicing agreement, dated as of May 20, 2005
(the “ Initial GMAC Flow Servicing Agreement
”), by and between MSMCH and GMAC Mortgage Corporation,
as amended by the First Amended and Restated Servicing
Agreement, dated as of January 1, 2006 (the “ Amended
Flow Servicing Agreement ” and, together with the
Initial GMAC Flow Servicing Agreement, the “ GMAC
Flow Servicing Agreement ”) and as further modified
hereby (this Assignment, together with GMAC Flow Servicing
Agreement, is collectively hereby referred to as the “
Servicing Agreement ”);
WHEREAS
the Depositor has agreed, on the terms and conditions
contained herein, to purchase from MSMCH the Specified
Mortgage Loans; 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:
1.
Assignment and Assumption
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
Servicer 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).
2.
Recognition of Trustee
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.
3.
Representations and Warranties
(a)
The
Servicer hereby warrants and represents to, and covenants with, the
Owner and the Trustee that, except as modified pursuant to Section
6 of this Assignment, each of the representations and warranties
set forth in Section 6.01 of the GMAC Servicing Agreement are true
and correct with respect to the Servicer as of the date
hereof.
(b)
Each
of the parties hereto represents and warrants that it is duly and
legally authorized to enter into this Assignment.
(c)
The
Servicer hereby warrants and represents that it is a FannieMae- or
FHLMC-approved Person.
(d)
Each
of the Depositor, the Owner 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) and
in the case of the Servicer, laws affecting the contract
obligations of insured banks.
(e)
The
Servicer hereby agrees that, for so long as the Trust is reporting
under the Exchange Act, its obligations under Sections 5.04 and
5.05 of the Initial Servicing Agreement and 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
5.
Amendments to the GMAC Servicing
Agreement:
The
parties to this Assignment hereby agree to amend the GMAC
Servicing Agreement as follows with respect to the Specified
Mortgage Loans:
(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; provided,
however, that for purposes of this Assignment, an account
maintained with Arvest Bank shall be an Eligible
Account.
b. “
Eligible Investments ” shall have the meaning of
Permitted Investments set forth in the Pooling and Servicing
Agreement.
c. “
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,
between 0.25% and 0.375% per annum.
(b)
Section
2.08(b) of the GMAC Servicing Agreement is hereby deleted in its
entirety.
(c)
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.
(d)
The
following is added as an additional paragraph at the end of Section
3.01 of the Servicing Agreement:
“The
Servicer will 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.”
(e)
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”
(f)
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 Trust."
(g)
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.”
(h)
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.
(i)
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”.
(j)
Solely
with respect to the Specified Mortgage Loans, the first sentence of
Section 5.05 is amended by replacing “2006” with
“2008”.
(k)
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.”
(l)
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.”
(m)
Solely
with respect to the Specified Mortgage Loans, the rights of the
Servicer pursuant to clause (iv) of Section 9.01(a) are hereby
deleted.
(n)
Solely
with respect to the Specified Mortgage Loans, the rights of the
Servicer pursuant to Section 9.02 are hereby deleted.
(o)
Section
20(a) of the Servicing Agreement is hereby amended to add the
Master Servicer as an “Indemnified Party” in accordance
with such Section.
(p)
Section
21.02(a) of the GMAC Servicing Agreement is hereby replaced in its
entirety with the following:
“(a)
SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS ASSIGNMENT, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE
EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF
DELAWARE, THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA
FOR DELAWARE, AND APPELLATE COURTS FROM ANY
THEREOF;”
(q)
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.”
(r)
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.”
(s)
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).
(t)
The
following is inserted as 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.”
(u)
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, Master Servicer and
any Depositor a statement of compliance addressed to the
Owner, 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 Assignment 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 Assignment 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.”
(v)
Section
31.05(a) of the Servicing Agreement is hereby amended by replacing
the reference to “2007” with
“2008”.
(w)
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 the form attached hereto as Exhibit
I. In addition to providing the Sarbanes
Certification, the Servicer shall also cooperate with the
Depositor and provide such additional information as the
Depositor may reasonably request with respect
thereto.”
(x)
The
third sentence of Section 31.06(a) is amended to require the
Servicer to cause any Subservicer or Subcontractor to comply with
all of the following Sections of the Servicing
Agreement: Section 31.02, Section 31.03(c), (e), (f) and
(g), Section 31.04, Section 31.05, Section 31.06(a) and Section
31.07.
(y)
The
last sentence of the second paragraph of Section 31.06(b) is
amended to require the Servicer to cause any Subservicer or
Subcontractor to provide any assessment of compliance and
attestation but also any other certifications required to delivered
under Section 31.05.
(z)
Section
31.07(a)(ii) of the Servicing Agreement is hereby amended and
restated in its entirety as follows:
“(ii) any
breach by the Servicer under this Section 31, including
particularly any failure by the Servicer, any Subservicer, any
Subcontractor to deliver any information, report,
certification, accountants’ letter or other material
when and as required, under this Article II, including any
failure by the Servicer to identify pursuant to Section
31.06(b) any Subcontractor “participating in the
servicing function” within the meaning of Item 1122 of
Regulation AB;”
(aa)
The
word “or” is struck at the end of Section 31.07(a)(ii)
of the Servicing Agreement, the word “or” is added at
the end of Section 31.07(a)(iii) of the Servicing Agreement, and
the following is inserted to Section 31.07(a) of the Servicing
Agreement:
“(iv)
negligence, bad faith or willful misconduct of the Company in
connection with its performance under this Article
II.
If
the indemnification provided for herein is unavailable or
insufficient to hold harmless an Indemnified Party, then the
Servicer agrees that it shall contribute to the amount paid or
payable by such Indemnified Party as a result of any claims,
losses, damages or liabilities incurred by such Indemnified
Party in such proportion as is appropriate to reflect the
relative fault of such Indemnified Party on the one hand and
the Servicer on the other.
This
indemnification shall survive the termination of this
Agreement or the termination of any party to this
Agreement.”
(bb)
The following
parenthetical is inserted directly before the proviso in the last
sentence of the first paragraph of Section 31.07(b)(i) of the
Servicing Agreement:
“(and
if the Servicer is servicing any of the Mortgage Loans in a
Securitization Transaction, appoint a successor servicer
reasonably acceptable to the Master Servicer for such
Securitization Transaction)”
(cc)
The
following paragraph is hereby incorporated into the Servicing
Agreement asnew Section 32:
“Third
Party Beneficiary. For purposes of this Agreement,
any master servicer appointed in connection with a
Reconstitution by the Owner shall be considered a third party
beneficiary to this Agreement (including but not limited to
Sections 31.01, 31.03 and 31.04 hereof) with respect to the
Specified Mortgage Loans entitled to all the rights and
benefits accruing to any master servicer herein with respect
to the Specified Mortgage Loans as if it were a direct party
to this Agreement.”
(dd)
Solely with
respect to the Specified Mortgage Loans, Schedule I to the
Servicing Agreement is hereby replaced in its entirety with the
Schedule I attached to this Assignment as Exhibit II.
(ee)
All
assessments, reports and certifications required to be delivered by
the Servicer this Assignment shall include the Master Servicer as
an addressee, and the Master Servicer shall be entitled to rely
upon all such assessments, reports and certifications.
(ff)
Written
notice provided in compliance with Sections 31.03(d), (e) or (f) of
the GMAC Servicing Agreement shall be substantially in the form of
Exhibit III to this Assignment.
(gg)
Exhibit
J to the GMAC Servicing Agreement is hereby replaced in its
entirety with Exhibit IV attached hereto.
6.
Notices
The
Depositor’s address for purposes for all notices and
correspondence related to the Mortgage Loans, this Assignment
and the Servicing Agreement is :
Morgan
Stanley Capital I Inc.
1585
Broadway
New
York, New York 10036
Attention: Morgan
Stanley Mortgage Loan Trust 2007-15AR
The
Trustee’s address for purposes for all notices and
correspondence related to the Mortgage Loans, this Assignment
and the Servicing Agreement is :
LaSalle
Bank National Association
135
South LaSalle Street, Suite 1511
Chicago,
Illinois 60603
Attention:
Global Securities and Trust Services MSM
2007-15AR
The
Owner’s address for purposes for all notices and
correspondence related to the Mortgage Loans, this Assignment
and the Servicing Agreement is :
Morgan
Stanley Mortgage Capital Inc.
1221
Avenue of the Americas
New
York, New York 10020
Attention:
Morgan Stanley Mortgage Loan Trust 2007-15AR
With
a copy to:
Morgan
Stanley & Co. Incorporated
1585
Broadway
New
York, New York 10036
Attention:
General Counsel’s Office
The
Servicer’s address for purposes fo
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