EXECUTION
MORGAN STANLEY CAPITAL I INC.
as Purchaser
and
MORGAN STANLEY MORTGAGE CAPITAL
INC.
as Seller
MORTGAGE LOAN PURCHASE
AGREEMENT
Dated as of November 1, 2005
Fixed Rate Mortgage Loans
Morgan Stanley Mortgage Loan Trust
2005-8SL,
Mortgage Pass-Through Certificates,
Series 2005-8SL
Table of Contents
Page
ARTICLE I. DEFINITIONS
Section 1.01.
Definitions
1
ARTICLE II. SALE OF MORTGAGE LOANS;
PAYMENT OF PURCHASE PRICE
Section 2.01.
Sale and Assignment of Mortgage
Loans.
1
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
10
ARTICLE IV. SELLER’S
COVENANTS
Section 4.01.
Covenants of the Seller
12
ARTICLE V. INDEMNIFICATION WITH
RESPECT TO THE SELLER
INFORMATION
Section 5.01.
Indemnification
13
ARTICLE VI. TERMINATION
Section 6.01.
Termination
15
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
16
Section 7.05.
Counterparts
16
Section 7.06.
Further Agreements
17
Section 7.07.
Intention of the Parties
17
Section 7.08.
Successors and Assigns: Assignment of
Purchase Agreement
17
Section 7.09.
Survival
18
Schedule I – Mortgage Loan
Schedule
I-1
MORTGAGE LOAN PURCHASE AGREEMENT dated as
of November 1, 2005 (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 Trust
Agreement dated as of November 1, 2005 (the “Trust
Agreement”) between the Purchaser, as depositor, and Wells
Fargo Bank, N.A., as trustee (the “Trustee”), auction
administrator and custodian, the Purchaser will convey the Mortgage
Loans to Morgan Stanley Mortgage Loan Trust 2005-8SL (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 Trust Agreement.
“ Seller Information
”: The information set forth in the Prospectus
Supplement 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, 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 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 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 Trust 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 Trust 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 Trust 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 Trust
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 $300,579,553 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)
The Mortgage is a valid, existing and
enforceable second lien on the Mortgaged Property, including all
improvements on the Mortgaged Property subject only to (i) senior
liens of such Mortgage, (ii) the lien of current real property
taxes and assessments not yet due and payable, (iii) 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 which
do not adversely affect the appraised value of the Mortgaged
Property, and (iv) 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. 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
second lien and second priority security interest on the property
described therein and the Seller has the full right to sell and
assign the same to Purchaser.
(d)
The Mortgage Loan is not in default
(other than delinquency in payment) and the Seller has no notice as
to any taxes, assessments and insurance premiums, water, sewer and
municipal charges, leasehold payments or ground rents relating to
the property secured by the Mortgage Loan which previously become
due and owing but which have not 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)
With respect to any hazard insurance
policy and the related Mortgaged Property, the Seller has not
engaged in, and has no knowledge of the borrower’s having
engaged in, any act or omission which would impair the coverage of
any such policy, the benefits of the endorsement provided for
therein, or the validity and binding effect of either, including
without limitation, no unlawful fee, commission, kickback or other
unlawful compensation or value of any kind has been or will be
received, retained or realized by any attorney, firm or other
person or entity, and no such unlawful items have been received,
retained or realized by the Seller;
(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)
[Reserved]
(m)
Any future advances made prior to the
Cut-off Date have been consolidated with the outstanding principal
amount secured by the Mortgage, and the secured principal amount,
as consolidated, bears a single interest rate and single repayment
term. The lien of the Mortgage securing the consolidated
principal amount is insured by a title insurance policy, an
endorsement to the policy insuring the mortgagee’s
consolidated interest or by other title evidence acceptable to
Fannie Mae and Freddie Mac. The consolidated principal amount
does not exceed the original principal amount of any Mortgage
Loan.
(n)
There is no default (other than
delinquency in payment), 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.
(o)
At settlement of the Mortgage Loan, and,
to the Seller’s knowledge as of the transaction date, there
were no mechanics’ liens or claims for work, labor or
material affecting the Mortgaged Property 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.
(p)
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 (and wholly within the
project with respect to a condominium unit) 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.
(q)
The Mortgage Loan was originated by or
for the Seller. The Mortgage Loan complies with all the
terms, conditions and requirements of Seller’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.
(r)
The Mortgaged Property is not subject to
any material damage by waste, fire, earthquake, earth movement,
subsidence, wind, storm, flood, water, tornado or other casualty,
and the Mortgaged Property is in good repair. At origination
of the Mortgage Loan there was, and, to the Seller’s
knowledge, there currently is, no proceeding pending or threatened,
for the total or partial condemnation of the Mortgaged Property.
To the best of the Seller’s knowledge, there have not
been any condemnation proceedings with respect to the Mortgaged
Property and to the best of the Seller’s knowledge there are
no such proceedings scheduled to commence at a future
date.
(s)
The Mortgage and related Mortgage Note
contain customary and enforceable provisions such as to render the
rights and remedies of the holder thereof adequate for the
realization against the Mortgaged Property of the benefits of the
security provided thereby, including (i) in the case of a Mortgage
designated as a deed of trust, by trustee’s sale, and (ii)
otherwise by judicial foreclosure. Following the date of
origination of the Mortgage Loan, the Mortgaged Property has not
been subject to any bankruptcy proceeding or foreclosure proceeding
and the borrower has not filed for protection under applicable
bankruptcy laws.
(t)
Seller has used no selection procedure in
soliciting or selecting the Mortgage Loans to be sold to Purchaser
or in the solicitation of borrowers which is in violation of
law.
(u)
The related Mortgage Note is not and has
not been secured by any collateral except the lien of the
corresponding Mortgage and the security interest of any applicable
security agreement or chattel mortgage referred to above and such
collateral does not serve as security for any other
obligation.
(v)
The Mortgage Loan does not contain
provisions pursuant to which monthly payments are paid or partially
paid with funds deposited in any separate account established by
the Seller, the borrower, or anyone on behalf of the borrower, or
paid by any source other than the borrower nor does it contain any
other similar provisions which may constitute a
“buydown” provision. The Mortgage Loan is not a
graduated payment Mortgage Loan and the Mortgage Loan does not have
a shared appreciation or other contingent interest
feature.
(w)
Each Mortgage Note requires a monthly
payment which is sufficient to amortize fully the original
principal balance over the original term thereof and to pay
interest at the related Mortgage Interest Rate. No Mortgage Loan
contains terms or provisions which would result in negative
amortization.
(x)
Each Mortgage Loan that is secured by
residential real property (or a leasehold interest therein) has a
CLTV of 100% or less (by Scheduled Principal Balance as of the
Cut-off Date).
(y)
Each Mortgaged Property is improved by a
one- to four-family residential dwelling including condominium
units, dwelling units in planned unit developments and
cooperatives, which, to the best of the Seller’s knowledge,
does not include mobile homes and does not constitute other than
real property under state law.
(z)
The mortgage file contains each of the
documents and instruments specified to be included therein as
required under the Seller’s guide, and each such document or
instrument is in a form specified by the Seller’s guide. For
those doc
