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Exhibit
99.18a
Execution
Version
ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this “
Assignment ”), dated of November 1, 2007 is
entered into among Morgan Stanley Capital I Inc., a Delaware
corporation (the “ Depositor ”), Morgan
Stanley Mortgage Capital Holdings LLC (“ MSMCH
”), US Bank, N.A. as seller (in such capacity, the
“ Seller ”) and as 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 and the Seller and Servicer have entered into a certain
Mortgage Loan Sale And Servicing Agreement, dated as of June
1, 2007 (as amended or modified to the date hereof, the
“ Sale and Servicing Agreement ”), pursuant
to which MSMCH has acquired certain Mortgage Loans pursuant to
the terms of the Sale and Servicing 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 Sale and
Servicing 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 Sale and
Servicing 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 and the Servicer hereby acknowledge
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 Sale and Servicing 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 Sale and Servicing 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 and the
Servicer hereby acknowledge 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. 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 Sale and Servicing
Agreement. Accordingly, the right of MSMCH to
consent to any amendment of the Sale and Servicing Agreement
and its rights concerning waivers as set forth in Section 24
of the Sale and 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 Sale and
Servicing Agreement with respect thereto, solely 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 (the “ Pooling
and Servicing Agreement ”) among the Depositor,
Wells Fargo Bank, National Association, as securities
administrator (the “ Securities Administrator
”) and master servicer (the “ Master
Servicer ”), and the Trustee, (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.
(d) From
and after November 30, 2007 (the “ Closing Date
”), the Seller and the Servicer shall and do hereby
recognize that the Depositor will transfer the Specified
Mortgage Loans and assign its rights and obligations under the
Sale and Servicing Agreement (solely to the extent set forth
herein) and this Assignment to the Trust created pursuant to
the Pooling and Servicing Agreement. The Seller and
the Servicer hereby acknowledge and agree that from and after
the Closing Date (i) the Trust will be the owner of the
Specified Mortgage Loans, (ii) they shall look solely to
the Trust for performance of any obligations of the Assignor
insofar as they relate to the Specified Mortgage Loans,
(iii) except as provided in the preceding paragraph, the
Trust (including the Trustee and the Master Servicer acting on
the Trust’s behalf) shall have all the rights and
remedies available to the Depositor, insofar as they relate to
the Specified Mortgage Loans, under the Sale and Servicing
Agreement (as modified by Section 5 below), including, without
limitation, the enforcement of the document delivery
requirements set forth in Section 11 of the Sale and
Servicing Agreement, and shall be entitled to enforce all of
the respective
obligations
of the Seller and the Servicer thereunder insofar as they
relate to the Specified Mortgage Loans, and (iv) all
references to the Purchaser, the Custodian or the Bailee under
the Sale and Servicing Agreement insofar as they relate to the
Specified Mortgage Loans, shall be deemed to refer to the
Trust (including the Trustee and the Master Servicer acting on
the Trust’s behalf). Such rights will
include, without limitation, the right to terminate the
Servicer, as servicer, under the Sale and Servicing 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 Sale and Servicing Agreement, the right to
receive all monthly reports and other data required to be
delivered by the Servicer under the Sale and Servicing
Agreement, the right to examine the books and records of the
Servicer to the extent provided in the Sale and Servicing
Agreement, indemnification rights and the right to exercise
certain rights of consent and approval relating to actions
taken by Assignor. None of the Purchaser, the
Seller nor the Servicer shall amend or agree to amend, modify,
waive, or otherwise alter any of the terms or provisions of
the Sale and Servicing Agreement which amendment,
modification, waiver or other alteration would in any way
affect the Specified Mortgage Loans or the Seller’s or
the Servicer’s performance under the Sale and Servicing
Agreement with respect to the Specified Mortgage Loans without
the prior written consent of the Master
Servicer. The Servicer shall 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
The
Servicer shall 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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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 Sale
and 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, MSMCH, the Servicer and the Seller
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 and Servicer hereby restates, as of the Closing Date,
the representations and warranties set forth in Sections 7.01
and 7.02 of the Sale and Servicing Agreement, with respect to
each of the Specified Mortgage Loans that were sold by it
under the Sale and Servicing Agreement, to and for the benefit
of the Depositor, the Securities Administrator, the Trustee
and the Trust, and by this reference incorporates such
representations and warranties herein, as of such Closing
Date; provided, however, that instead of the representation
and warranty set forth in Subsection 7.02(b), the Seller
hereby represents and warrants that as of the Closing Date,
none of the Specified Mortgage Loans is contractually past due
by more than 30 days.
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4.
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Remedies for Breach of Representations and
Warranties
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The
Seller and Servicer hereby acknowledges and agrees that the
remedies available to the Depositor, MSMCH, the Master
Servicer and the Trust (including the Trustee acting on the
Trust’s behalf) in connection with any breach of the
representations and warranties made by the Seller and Servicer
set forth in Section 3 hereof shall be as set forth in
Subsection 7.03 of the Sale and Servicing Agreement as if they
were set forth herein (including without limitation the
repurchase and indemnity obligations set forth
therein).
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5.
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Amendments to Sale and Servicing Agreement
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The
parties to this Assignment hereby agree to amend the Sale and
Servicing Agreement solely with respect to the Specified
Mortgage Loans as follows:
(a) The
following definitions are inserted to Section 1 of the Sale
and Servicing Agreement:
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 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.
Eligible Institution : 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.
Rating Agency : Any of Standard & Poor’s,
Moody’s Investors Service, Inc. or Fitch, Inc. or any
successors thereto, rating one or more classes of certificates
issued by the Trust.
(b) The
following definitions in Section 1 of the Sale and Servicing
Agreement are amended and restated in their entirety as
follows:
Permitted Investments : 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.
Servicing Fee Rate : With respect to each Adjustable
Rate Mortgage Loan, 0.25% per annum.
(c) Section
11.01 of the Sale and Servicing Agreement is hereby amended as
follows:
(1) to
remove requiring the consent of the Purchser 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, the Master Servicer and 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.
(d) The
following is inserted after the first sentence of Subsection
11.04:
The
Custodial Account shall be a Eligible Account.
(e) The
following paragraphs are hereby incorporated into the Sale and
Servicing Agreement at the end of Section 11.12:
“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.
The
Servicer shall use its best efforts to dispose of the REO
Property as soon as possible, and shall sell such REO Property
in any event within three years after title has been taken to
such REO Property.”
(f) Section
14.02 of the Sale and Servicing Agreement is hereby
deleted.
(g) Subsection
34.03(d) of the Sale and 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 Seller shall (or shall cause each Subservicer
and Third-Party Originator to) (i) promptly notify the
Purchaser and any Depositor in writing of (A) any material
litigation or governmental proceedings pending
against
the Seller, any Subservicer or any Third-Party Originator, (B)
any affiliations or relationships that develop following the
closing date of a Securitization Transaction between the
Seller, any Subservicer or any Third-Party Originator 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, (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 Seller and Servicer, and (E) the
Servicer’s entry into an agreement with a Subservicer to
perform or assist in 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.
(h) Subsection
34.03(f) of the Sale and Servicing Agreement is hereby amended
and restated in its entirety as follows:
“In
addition to such information as the Seller, as servicer, is
obligated to provide pursuant to other provisions of this
Agreement, if so requested by the Purchaser or any Depositor,
the Seller shall provide such information regarding the
performance or servicing of the Mortgage Loans as is
reasonably required by the Purchaser or any Depositor to
permit the Purchaser or such Depositor to comply with the
provisions of Regulation AB relating to Static Pool
Information regarding the performance of the Mortgage Loans on
the basis of the Purchaser's or such Depositor's reasonable,
good faith interpretation of the requirements of Item
1105(a)(1)-(3) of Regulation AB (including without limitation
as to the format and content of such Static Pool
Information). Such information shall be provided
concurrently with the monthly reports otherwise required to be
delivered by the Servicer under this Agreement commencing with
the first such report due in connection with the applicable
Securitization Transaction.”
(i) The
following paragraph is hereby incorporated into the Sale and
Servicing Agreement as new Subsections 34.03(g) and
(h):
“(g) 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 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), and any material changes in
origination, underwriting or other criteria for acquisition or
selection of pool assets (Item 1121(a)(14) of Regulation
AB).
(h) 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 Company or such Subservicer’s performance
hereunder, as may be reasonably requested by the Purchaser,
any Master Servicer or any Depositor.”
(j) Subsection
34.05(a)(iv) 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, 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 Seller, in the form attached hereto
as Exhibit 16 .”
(k) The
penultimate sentence of Subsection 34.06(a) is hereby amended
and restated in its entirety as follows:
“The
Seller shall cause any Subservicer used by the Seller (or by
any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of this Section and
with Subsections 34.02 , 34.03(c), (e), (g)
and (h) , 34.04 , 34.05 and 34.07 of
this Agreement to the same extent as if such Subservicer were
the Seller, and to provide the information required with
respect to such Subservicer under Subsection 34.03(d) of this
Agreement.”
(l) The
last two lines of Subsection 34.06(b) are hereby
amended and restated as follows:
“…assessment
of compliance and attestation, and the other certifications
required to be delivered...”
(m) Subsection
34.07 is hereby amended and restated in its entirety as
follows:
“Subsection
34.07
Indemnification; Remedies.
(a) The
Seller shall indemnify the Purchaser, each affiliate of the
Purchaser, and each of the following parties participating in
a Securitization Transaction: each sponsor and
issuing entity; each Person responsible for the preparation,
execution or filing of any report required to be filed with
the Commission with respect to such Securitization
Transaction, or for execution of a certification pursuant to
Rule 13a-14(d) or Rule 15d-14(d) under the Exchange Act with
respect to such Securitization Transaction; each broker dealer
acting as
underwriter,
placement agent or initial purchaser, each Person who controls
any of such parties or the Depositor (within the meaning of
Section 15 of the Securities Act and Section 20 of the
Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the
foregoing and of the Depositor (each, an “Indemnified
Party”), and shall hold each of them harmless from and
against any losses, damages, penalties, fines, forfeitures,
legal fees and expenses and related costs, judgments, and any
other costs, fees and expenses that any of them may sustain
arising out of or based upon:
(i)(A) any
untrue statement of a material fact contained or alleged to be
contained in any information, report, certification,
accountants’ letter or other material provided in
written or electronic form under this Section 34 by or
on behalf of the Seller, or provided under this Section
34 by or on behalf of any Subservicer, Subcontractor or
Third-Party Originator (collectively, the “ Seller
Information ”), or (a) the omission or
alleged omission to state in the Seller Information a material
fact required to be stated in the Seller Information or
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (B)
of this paragraph shall be construed solely by reference to
the Seller Information and not to any other information
communicated in connection with a sale or purchase of
securities, without regard to whether the Seller Information
or any portion thereof is presented together with or
separately from such other information;
(ii) any
failure by the Seller, any Subservicer, any Subcontractor or
any Third-Party Originator to deliver any information, report,
certification, accountants’ letter or other material
when and as required, under this Section 34 , including
any failure by the Seller to identify pursuant to
Subsection 34.06(b) any Subcontractor
“participating in the servicing function” within
the meaning of Item 1122 of Regulation AB;
(iii) any
breach by the Seller of a representation or warranty set forth
in Subsection 34.02(a ) or in a writing furnished
pursuant to Subsection 34.02(b) and
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