Exhibit 99.4
EXECUTION COPY
MORGAN STANLEY CAPITAL I INC.
as Purchaser
and
MORGAN STANLEY MORTGAGE CAPITAL INC.
as Seller
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of October 1, 2006
Fixed Rate Mortgage Loans
Morgan Stanley Mortgage Loan Trust 2006-15XS,
Mortgage Pass-Through Certificates, Series 2006-15XS
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Table of Contents
Page
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ARTICLE I.
DEFINITIONS
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Section
1.01.
Definitions............................................................................1
ARTICLE II. SALE OF
MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section
2.01. Sale and
Assignment of Mortgage
Loans..................................................2
Section
2.02. Recognition of
Trustee.................................................................2
Section
2.03. Obligations of
Seller Upon
Sale........................................................2
Section
2.04. Payment of
Purchase Price for the Mortgage
Loans.......................................4
ARTICLE III.
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01. Seller
Representations and Warranties Relating to the Mortgage
Loans...................4
Section
3.02. Seller
Representations and
Warranties.................................................11
ARTICLE IV. SELLER'S
COVENANTS
Section
4.01. Covenants of the
Seller...............................................................13
ARTICLE V.
INDEMNIFICATION WITH RESPECT TO THE SELLER INFORMATION
Section
5.01.
Indemnification.......................................................................13
ARTICLE VI.
TERMINATION
Section
6.01.
Termination...........................................................................16
ARTICLE VII.
MISCELLANEOUS PROVISIONS
Section
7.01.
Amendment.............................................................................16
Section
7.02. Governing
Law.........................................................................16
Section
7.03.
Notices...............................................................................16
Section
7.04. Severability of
Provisions............................................................17
Section
7.05.
Counterparts..........................................................................17
Section
7.06. Further
Agreements....................................................................17
Section
7.07. Intention of the
Parties..............................................................17
Section
7.08. Successors and
Assigns: Assignment of Purchase
Agreement..............................18
Section
7.09.
Survival..............................................................................18
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Schedule I - Mortgage Loan Schedule I-1
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EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of October 1, 2006
(the
"Agreement"), between MORGAN STANLEY MORTGAGE CAPITAL INC. (the
"Seller" or
"MSMCI") 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 October 1, 2006 (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 2006-15XS (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."
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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, MSMCI 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 MSMCI (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, MSMCI represents and warrants
to
the Depositor and the Trustee that MSMCI 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
MSMCI's
acquisition of the Mortgage Loans.
Section 2.02 Recognition of Trustee
(a) From and after the date hereof, both MSMCI 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 MSMCI
that this
Assignment shall be binding upon and inure to the benefit of the
Depositor,
the Trustee and MSMCI 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 MSMCI 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 MSMCI.
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
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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
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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 $671,388,100 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)
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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
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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
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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 0.03% 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 i
