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EXECUTION
VERSION
Exhibit 99.4
MORGAN
STANLEY CAPITAL I INC.
as
Purchaser
and
MORGAN
STANLEY MORTGAGE CAPITAL HOLDINGS LLC
as
Seller
MORTGAGE
LOAN PURCHASE AGREEMENT
Dated
as of June 1, 2007
Fixed-Rate
Mortgage Loans
Morgan
Stanley Mortgage Loan Trust 2007-11AR,
Mortgage
Pass-Through Certificates, Series 2007-11AR
Table of Contents
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Page
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ARTICLE
I. DEFINITIONS
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Section
1.01.
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Definitions
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1
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ARTICLE
II. SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE
PRICE
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Section
2.01.
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Sale
and Assignment of Mortgage Loans.
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2
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Section
2.02.
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Recognition
of Trustee
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2
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Section
2.03.
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Obligations
of Seller Upon Sale
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2
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Section
2.04.
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Payment
of Purchase Price for the Mortgage Loans
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4
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ARTICLE
III. REPRESENTATIONS AND WARRANTIES; REMEDIES FOR
BREACH
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Section
3.01.
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Seller
Representations and Warranties Relating to the Mortgage
Loans
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4
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Section
3.02.
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Seller
Representations and Warranties
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11
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ARTICLE
IV. SELLER’S COVENANTS
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Section
4.01.
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Covenants
of the Seller
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13
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ARTICLE
V. INDEMNIFICATION WITH RESPECT TO THE SELLER
INFORMATION
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Section
5.01.
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Indemnification
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13
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ARTICLE
VI. TERMINATION
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Section
6.01.
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Termination
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16
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ARTICLE
VII. MISCELLANEOUS PROVISIONS
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Section
7.01.
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Amendment
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16
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Section
7.02.
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Governing
Law
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16
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Section
7.03.
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Notices
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16
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Section
7.04.
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Severability
of Provisions
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17
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Section
7.05.
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Counterparts
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17
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Section
7.06.
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Further
Agreements
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17
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Section
7.07.
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Intention
of the Parties
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17
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Section
7.08.
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Successors
and Assigns: Assignment of Purchase Agreement
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18
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Section
7.09.
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Survival
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18
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Schedule
I – Mortgage Loan Schedule
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I-1
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EXECUTION VERSION
MORTGAGE
LOAN PURCHASE AGREEMENT, dated as of June 1, 2007 (the
“Agreement”), between MORGAN STANLEY MORTGAGE
CAPITAL HOLDINGS LLC, successor by merger to Morgan Stanley
Mortgage Capital Inc. (the “Seller” or
“MSMCH”) and MORGAN STANLEY CAPITAL I INC. (the
“Purchaser”).
WITNESSETH :
WHEREAS,
the Seller is the owner of either the notes or other evidence
of indebtedness (the “Mortgage Notes”) or other
evidence of ownership so indicated on Schedule I hereto
referred to below, and the other documents or instruments
constituting the Mortgage File (collectively, the
“Mortgage Loans”); and
WHEREAS,
the Seller, as of the date hereof, owns the mortgages (the
“Mortgages”) on the properties (the
“Mortgaged Properties”) securing such Mortgage
Loans, including rights to (a) any property acquired by
foreclosure or deed in lieu of foreclosure or otherwise and
(b) the proceeds of any insurance policies covering the
Mortgage Loans or the Mortgaged Properties or the obligors on
the Mortgage Loans; and
WHEREAS,
the parties hereto desire that the Seller sell the Mortgage
Loans to the Purchaser and the Purchaser purchase the Mortgage
Loans from the Seller pursuant to the terms of this Agreement;
and
WHEREAS,
pursuant to the terms of a Pooling and Servicing Agreement
dated as of June 1, 2007 (the “Pooling and Servicing
Agreement”) among the Purchaser, as depositor, Wells
Fargo Bank, National Association, as master servicer and
securities administrator, and LaSalle Bank National
Association, as trustee (the “Trustee”), the
Purchaser will convey the Mortgage Loans to Morgan Stanley
Mortgage Loan Trust 2007-11AR (the
“Trust”).
NOW,
THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
ARTICLE
I.
DEFINITIONS
Section
1.01 Definitions . All
capitalized terms used but not defined herein and below shall
have the meanings assigned thereto in the Pooling and
Servicing Agreement.
“
Seller Information ”: The information
set forth in the Prospectus Supplement or the Free Writing
Prospectus under the caption: “Description of the
Mortgage Loans—Loan Purchasing Guidelines and
Underwriting Standards”, “—Loan Purchasing
Guidelines—Morgan Stanley Mortgage Capital
Inc.”
ARTICLE
II.
SALE
OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section
2.01 Sale and
Assignment of Mortgage Loans .
(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
Mortgage Loans and all rights and obligations related thereto as
provided under the Agreement to the extent relating to the 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.
(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 Mortgage Loans and all
rights and obligations related thereto, 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 Mortgage Loans
since the date of MSMCH’s acquisition of the Mortgage
Loans.
Section
2.02 Recognition of
Trustee
(a)
From
and after the date hereof, both MSMCH and the Depositor shall note
the transfer of the 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
Mortgage Loans, and Servicer shall service the 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 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 12.02 of the Agreement shall be
exercisable, to the extent any such amendment or waiver affects the
Mortgage Loans or any of the rights under the Agreement with
respect thereto (other than the servicing of the Mortgage Loans,
which shall be enforced by the Master Servicer) by the Trustee as
assignee of MSMCH.
Section
2.03 Obligations of Seller
Upon Sale .
(a) In
connection with any transfer pursuant to Section 2.01 hereof,
the Seller further agrees, at its own expense, on or prior to
the Closing Date, (x) to indicate in its books
and
records
that the Mortgage Loans have been sold to the Purchaser
pursuant to this Agreement and (y) to deliver to the Purchaser
and the Trustee a computer file containing a true and complete
list of all such Mortgage Loans specifying for each such
Mortgage Loan, as of the Cut-off Date, its account number and
Cut-off Date Principal Balance. Such file, which
forms a part of Schedule A to the Pooling and Servicing
Agreement, shall also be marked as Schedule I to this
Agreement and is hereby incorporated into and made a part of
this Agreement.
In
connection with such transfer and assignment of the Mortgage
Loans, the Seller shall, on behalf of the Purchaser, deliver
to and deposit with, the Custodian, as the agent of the
Trustee, the documents or instruments set forth in Section
2.01(a) of the Pooling and Servicing Agreement with respect to
each Mortgage Loan so transferred and assigned.
If
any of the documents referred to above has as of the Closing
Date been submitted for recording but either (x) has not been
returned from the applicable public recording office or (y)
has been lost or such public recording office has retained the
original of such document, the obligations of the Seller to
deliver such documents shall be deemed to be satisfied upon
(1) delivery to the Custodian no later than the Closing Date,
of a copy of each such document certified by the Seller in the
case of (x) above or the applicable public recording office in
the case of (y) above to be a true and complete copy of the
original that was submitted for recording and (2) if such copy
is certified by the Seller, delivery to the Custodian,
promptly upon receipt thereof of either the original or a copy
of such document certified by the applicable public recording
office to be a true and complete copy of the
original. If the original lender’s title
insurance policy on a Mortgage Loan was not delivered as
required by this Section 2.01, the Seller shall deliver or
cause to be delivered to the Custodian, a written commitment
or interim binder or preliminary report of title issued by the
title insurance or escrow company, with the original to be
delivered to the Custodian, promptly upon receipt
thereof. The Seller shall deliver or cause to be
delivered to the Custodian promptly upon receipt thereof any
other original documents constituting a part of a Mortgage
File received with respect to any Mortgage Loan, including,
but not limited to, any original documents evidencing an
assumption or modification of any Mortgage Loan.
Upon
discovery or receipt of notice of any materially defective
document in, or that a document is missing from, a Mortgage
File, the Seller shall have 90 days to cure such defect or
deliver such missing document to the Trustee. If
the Seller does not cure such defect or deliver such missing
document within such time period, the Seller shall either
repurchase or substitute for such Mortgage Loan in accordance
with Section 2.05 of the Pooling and Servicing
Agreement.
The
Purchaser hereby acknowledges its acceptance of all right,
title and interest to the Mortgage Loans and other property,
now existing and hereafter created, conveyed to it pursuant to
Section 2.01.
The
parties hereto intend that the transaction set forth herein be
a sale by the Seller to the Purchaser of all the
Seller’s right, title and interest in and to the
Mortgage Loans and other property described
above. In the event the transaction set forth
herein is deemed not to be a sale, the Seller hereby grants to
the Purchaser a security interest in all of the Seller’s
right, title and interest in, to and under the Mortgage Loans
and other property described above, whether
now
existing or hereafter created, to secure all of the
Seller’s obligations hereunder; and this Agreement shall
constitute a security agreement under applicable
law. The Seller and the Purchaser shall, to the
extent consistent with this Agreement, take such actions as
may be necessary to ensure that, if this Agreement were deemed
to create a security interest in the Mortgage Loans, such
security interest would be deemed to be a perfected security
interest of first priority under applicable law and will be
maintained as such throughout the term of the Pooling and
Servicing Agreement.
Section
2.04 Payment of Purchase
Price for the Mortgage Loans . In consideration of the
sale of the Mortgage Loans from the Seller to the Purchaser on
the Closing Date, the Purchaser agrees to pay to the Seller on
the Closing Date by transfer of immediately available funds,
as directed by the Seller, an amount equal to $406,052,663 in
respect of the Mortgage Loans (the “Purchase
Price”).
ARTICLE
III.
REPRESENTATIONS
AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01 Seller Representations
and Warranties Relating to the Mortgage Loans . The Seller
hereby represents and warrants to the Purchaser, with respect
to the Mortgage Loans, that as of the Closing Date or as of
such date specifically provided herein:
(a)
The
information set forth in the Mortgage Loan Schedule is complete,
true and correct in all material respects as of the Cut-off
Date.
(b)
Seller
is the sole owner and holder of the Mortgage Loans free and clear
of any liens, pledges, except for the pledge of the Mortgage note
by Seller with a warehouse lender disclosed to Purchaser, charges
or security interest of any nature, and has full right and
authority to sell and assign the same.
(c)
With
respect to each Mortgage Loan that is not a Co-op Loan, the
Mortgage is a valid, existing and enforceable first (or, if
indicated by Seller, second) lien on the Mortgaged Property,
including all improvements on the Mortgaged Property subject only
to (i) the lien of current real property taxes and assessments not
yet due and payable, (ii) covenants, conditions and restrictions,
rights of way, easements and other matters of the public record as
of the date of recording being acceptable to Mortgage lending
institutions generally and specifically referred to in the
owner’s title insurance policy delivered to the originator of
the Mortgage Loan and (x) specifically referred to or otherwise
considered in the appraisal made for the originator of the Mortgage
Loan or (y) which do not adversely affect the appraised value of
the Mortgaged Property (or underlying Mortgaged Property (or
underlying Mortgaged Property, in the case of a Co-op Loan), (iii)
other matters to which like properties are commonly subject which
do not materially interfere with the benefits of the security
intended to be provided by the Mortgage or the use, enjoyment,
value or marketability of the related Mortgaged Property (or
underlying Mortgaged Property, in the case of a Co-op Loan) (iv)
with respect to a second lien only, the lien of the first mortgage
on the related mortgaged property. Any security agreement, chattel
Mortgage or equivalent document related to and delivered in
connection with the Mortgage loan establishes and creates a valid,
existing and enforceable first (or, if indicated by Seller,
second)
lien
and first (or if indicated by Seller, second) priority security
interest on the property described therein and the Seller has the
full right to sell and assign the same to Purchaser. With respect
to each Co-op Loan, the related Mortgage is a valid, subsisting and
enforceable first priority security interest on the related
cooperative shares securing the Mortgage note, subject only to (i)
liens of the related residential cooperative housing corporation
for unpaid assessments representing the borrower’s pro rata
share of the related residential cooperative housing
corporation’s payment for its blanket Mortgage, current and
future real property taxes, insurance premiums, maintenance fees
and other assessments to which like collateral is commonly subject
and (ii) other matters to which like collateral is commonly subject
to which do not materially interfere with the benefits of the
security interest intended to be provided by the related security
agreement.
(d)
The
Mortgage Loan is not in default and all monthly payments due prior
to the transaction have been paid and all taxes, assessments and
insurance premiums, water, sewer and municipal charges, leasehold
payments or ground rents relating to the property secured by the
Mortgage Loan have been paid. Seller has not advanced funds or
induced or solicited any advances or funds by a party other than a
borrower directly or indirectly, for the payment of any amounts
required by the Mortgage loans.
(e)
With
respect to escrow deposits and escrow payments, all such payments
are in the possession of Seller and there exist no deficiencies in
connection therewith for which customary arrangements for repayment
thereof have not been made.
(f)
The
terms of the Mortgage Note and Mortgage have not been impaired,
waived, altered or modified in any respect from the date of
origination, except by a written instrument which has been
recorded, if necessary to protect the interest of Purchaser, and
which has been delivered to Purchaser or to such other person as
Purchaser shall designate in writing. The substance of any such
waiver, alteration or modification has been approved by the issuer
of any related private mortgage insurance policy and the title
insurer, if any, to the extent required by the policy. No borrower
has been released, in whole or in part, except in connection with
an assumption agreement, approved by the issuer of any related
private mortgage insurance policy and the title insurer, to the
extent required by the policy, and which assumption agreement is
part of the mortgage file delivered to Purchaser or to such other
person as Purchaser shall designate in writing.
(g)
The
Mortgage Loan is not subject to any right of rescission, set-off,
counter claim or defense and is not unenforceable under any terms.
The Mortgage note, the Mortgage and any other agreement executed
and delivered by a borrower or guarantor, if applicable, are
genuine, legal, valid, binding and enforceable obligations of the
maker thereof. All parties to the Mortgage note and any other
agreement executed and delivered by a borrower or guarantor, if
applicable, had legal capacity to execute such documents and all
such documents have, in fact, been properly executed by such
parties.
(h)
The
Mortgage Loan has not been satisfied, cancelled, subordinated or
rescinded, in whole or in part (other than as to principal
prepayments in full which may have been received prior to the
transaction date), and the Mortgaged Property has not been
released
from
the lien of the Mortgage, in whole or in part, nor has any
instrument been executed that would effect any such satisfaction,
cancellation, subordination, rescission or release.
(i)
The
Mortgaged Property (or underlying Mortgaged Property, in the case
of a Co-op Loan) and all improvements thereon are insured against
loss by fire and other such hazards as are customary in the area
where the Mortgaged Property (or underlying Mortgaged Property, in
the case of a Co-op Loan) is located. Such coverage shall contain
fire and hazard insurance policy with extended coverage as called
for under the Seller’s guide. Such insurance policy and any
other insurance policy related to the Mortgage Loan or the
Mortgaged Property (or underlying Mortgaged Property, in the case
of a Co-op Loan) contains a standard Mortgagee clause naming Seller
and its successors and assigns as Mortgagee and loss payee. Each
Mortgage obligates the borrower there under to maintain such
insurance at their costs and expense and allows the Mortgagee to
obtain and maintain such insurance at borrower’s costs and
expense, and to seek reimbursement from the borrower should there
be any failure by the borrower to maintain such policy. If any
flood insurance is required by applicable law or pursuant to the
Mortgage Loan documents or any other applicable requirement, then
it has been obtained and in full force and effect. Any statements
made by the borrower or the Seller in applications for such
policies were true, complete and correct at the time the
application was made and there are no events that have occurred
since that policy was issued that would affect the stated coverage
of the policy.
(j)
Any
and all requirements of any federal, state or local law which
include, but are not limited to usury, truth-in-lending, real
estate settlement procedures, disclosure laws, consumer credit
protection and equal credit opportunity have been complied
with.
(k)
The
proceeds of the Mortgage Loan have been fully disbursed and there
is no requirement or anticipation of future advances there under
(other than any escrow holdbacks retained pursuant to the terms of
a related construction loan). All costs, fees and expenses incurred
in making, closing or recording the Mortgage Loan have been
paid.
(l)
Each
Mortgage Loan that is not a Co-op Loan is covered by an ALTA
lender’s title insurance policy or other generally acceptable
form of policy, or with respect to any mortgage loan for which the
related mortgaged property is located in California, a CLTA
lender’s title insurance policy, or insurance acceptable to
Fannie Mae or Freddie Mac, issued by a title insurer acceptable to
Fannie Mae or Freddie Mac and qualified to do business in the
jurisdiction where the Mortgaged Property is located, insuring
(subject to the exceptions contained in paragraph (c) above) the
Seller, its successors and assigns, as to the first (or, if
indicated by Seller, second) priority lien of the Mortgage in the
original principal amount of the Mortgage Loan, subject only to the
exceptions contained in clauses (i), (ii), (iii) and (iv) of
paragraph (c) of this Section 3.01, and in this case of adjustable
rate mortgage loans, against any loss by reason of the invalidity
or unenforcability of the lien resulting from the provisions of the
mortgage providing for adjustment to the mortgage interest rate and
monthly payment. Where required by applicable state law
or regulation, the Mortgagor has been given the opportunity to
choose the carrier of the required mortgage title
insurance. The Seller, its successors and assigns, are
the sole insureds of such lender’s title insurance policy and
such lender’s title insurance policy is in full force and
effect and will be in full force and effect upon the consummation
of the transactions contemplated by this Agreement. No
claims have been made
under
such lender’s title insurance policy, and no prior holder of
the related Mortgage, including the Seller, has done, by act or
omission, anything which would impair the coverage of such
lender’s title insurance policy.
(m)
There
is no default, breach, violation, anticipated breach or event of
acceleration existing under the Mortgage or the related Mortgage
Note and no existing or known event which, with the passage of
time, (or with notice and the expiration of any grace or cure
period) would constitute a default, breach, violation or event of
acceleration under such Mortgage or the related Mortgage
Note.
(n)
At
settlement of the Mortgage Loan, and, to the Seller’s
knowledge as of the transaction date, there were no
mechanic’s liens or claims for work, labor or material
affecting the Mortgaged Property (or the related residential
dwelling unit at the underlying mortgaged property, in the case of
a Co-op Loan) which are or may be a lien prior to the lien of such
Mortgage except those which are insured against by the title
insurance policy.
(o)
With
respect to each mortgage loan, which is not a Co-op Loan, all
improvements subject to the Mortgage which were considered in
determining the appraised value of the Mortgaged Property lie
wholly within the boundaries and building restriction lines of the
Mortgaged Property except for de minimis encroachments permitted by
the Fannie Mae Guide and which have been noted on the appraisal or
the title policy affirmatively insures against loss or damage by
reason of any violation, variation or encroachment or adverse
circumstance which is either disclosed or would have been disclosed
by an accurate survey, and no improvements on adjoining properties
encroach upon the Mortgaged Property except those which are insured
against by the title insurance policy referred to in clause (m)
above or are acceptable under Fannie Mae or Freddie Mac guidelines
and all improvements on the property comply with all applicable
zoning and subdivision laws and ordinances.
(p)
Except
for approximately 0.04% of the Mortgage Loans, by aggregate stated
principal balance as of the Cut-off Date, each Mortgage Loan
substantially complies with all the terms, conditions and
requirements of Seller’s standards in effect at the time of
origination of such Mortgage Loan. With respect to the
remaining Mortgage Loans, each such Mortgage Loan complies with all
the terms, conditions and requirements of the related
originator’s standards in effect at the time of origination
of such Mortgage Loan. The Mortgage Notes and Mortgages
(exclusive of any riders) are on forms generally acceptable to
Fannie Mae or Freddie Mac.
(q)
The
Mortgaged Property is not subject to any material damage by waste,
fire, earthquake, windstorm, flood or other casualty. At
origination of the Mortgage Loan there was, and there currently is,
no proceeding pending for the total or partial condemnation of the
Mortgaged Property. To the best of the Seller’s
knowledge there are no such proceedings s
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