MORGAN STANLEY CAPITAL I INC.
as Purchaser
and
MORGAN STANLEY MORTGAGE CAPITAL INC.
as Seller
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of December 1, 2006
Fixed Rate Mortgage Loans
Morgan Stanley Mortgage Loan Trust 2006-17XS,
Mortgage Pass-Through Certificates, Series 2006-17XS
Table of Contents
Page
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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. 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
Schedule I - Mortgage Loan Schedule I-1
i
EXECUTION COPY
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of December 1, 2006
(the "Agreement"), between MORGAN STANLEY MORTGAGE CAPITAL INC. (the "Seller"
or "MSMCI") and MORGAN STANLEY CAPITAL I INC. (the "Purchaser").
WITNESSETH:
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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 December 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 2006-17XS (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, 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