Exhibit 1.1
MORGAN STANLEY ABS CAPITAL I INC.
[Title of Securities]
SERIES 20__-___
UNDERWRITING AGREEMENT
[insert date]
[Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036]
[Names of other underwriters]
Ladies and Gentlemen:
Morgan Stanley ABS Capital I Inc., a Delaware corporation (the
"Depositor"), proposes to cause the issuance of, and to sell to
[Morgan Stanley
& Co. Incorporated] and [names of other underwriters]
(together, the
"Underwriters"), the [Title of Securities] identified in Schedule I
hereto (the
"Certificates") pursuant to this Underwriting Agreement, dated
[insert date]
(this "Agreement"), between the Depositor and the Underwriters. The
Certificates
will evidence beneficial ownership interests in a trust fund (the
"Trust Fund")
to be formed by the Depositor and consisting primarily of a
segregated pool (the
"Mortgage Pool") of [_________] mortgage loans (the "Mortgage
Loans").
[The
Mortgage Loans (the "MSMC Mortgage Loans") will be acquired by
the
Depositor from Morgan Stanley Mortgage Capital Inc. ("MSMC")
pursuant to the
mortgage loan purchase agreement, dated [insert date] (the "MSMC
Mortgage Loan
Purchase Agreement") between the Depositor and MSMC.] [Certain of
the Mortgage
Loans (the "Additional Seller Mortgage Loans") will be acquired by
the Depositor
from [name of Additional Seller] (the "Additional Seller") pursuant
to the
mortgage loan purchase agreement, dated [insert date] (the
"Additional Seller
Mortgage Loan Purchase Agreement"), between the Depositor and the
Additional
Seller. MSMC, and the Additional Seller collectively constitute the
"Mortgage
Loan Sellers"; and the MSMC Mortgage Loan Purchase Agreement and
the Additional
Seller Mortgage Loan Purchase Agreement collectively constitute the
"Mortgage
Loan Purchase Agreements."]
The Trust
is to be created and the Certificates are to be issued under [a
pooling and servicing agreement, dated as of [insert date] (the
"Pooling and
Servicing Agreement")], between the Depositor, as depositor, [name
of master
servicer], as master servicer, [name of trustee/paying
agent/certificate
registrar], as trustee, paying agent and certificate registrar.
Capitalized terms used herein, but not otherwise defined herein
shall have
the meanings set forth in the Mortgage Loan Purchase
Agreements.
The
Depositor has filed with the Securities and Exchange Commission
(the
"Commission") a registration statement (No. 333-130694) on Form S-3
for the
registration of the Certificates under the Securities Act of 1933,
as amended
(the "1933 Act"), which registration
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statement has become effective. The Depositor proposes to file with
the
Commission pursuant to Rule 424(b) under the 1933 Act a supplement
to the form
of prospectus included in such registration statement relating to
the
Certificates and the plan of distribution thereof. Such
registration
statement, including the exhibits thereto, and information that is
contained
in the Prospectus (as defined below) and is deemed to be part of
and included
in such registration statement as it may have been amended or
supplemented at
the date of the Prospectus, is hereinafter referred to as the
"Registration
Statement"; the prospectus first required to be filed to satisfy
the condition
set forth in Rule 172(c) and pursuant to Rule 424(b) under the 1933
Act, is
hereinafter referred to as the "Base Prospectus"; such form of
supplement to
the Base Prospectus relating to the Certificates, in the form first
required
to be filed to satisfy the condition set forth in Rule 172(c) and
pursuant to
Rule 424(b) under the 1933 Act (including the Base Prospectus as
so
supplemented) is hereinafter referred to as the "Prospectus
Supplement"; and
the Base Prospectus and the Prospectus Supplement, together, are
hereinafter
referred to as the "Prospectus".
At or prior to the
time when sales to purchasers of the Certificates were
first made, which was approximately ___ [a][p].m. on [insert
applicable date]
(the "Time of Sale"), the Depositor had prepared the following
information
(collectively, the "Time of Sale Information"): the Depositor's
Free Writing
Prospectus dated [insert date] (the cover page of which is attached
hereto as
Annex A) to accompany the Depositor's Prospectus dated [insert
date], and the
Depositor's Prospectus dated [insert date], the Term Sheet dated
[insert date],
relating to the Certificates, each "free-writing prospectus" (as
defined
pursuant to Rule 405 under the 1933 Act) (a "Free Writing
Prospectus") the first
page of each of which is attached as Annex B hereto and the pricing
information
annex attached hereto as Annex C. If, subsequent to the date of
this Agreement,
the Depositor and the Underwriters determine that such information
included an
untrue statement of material fact or omitted to state a material
fact necessary
in order to make the statements therein, in the light of the
circumstances under
which they were made, not misleading and terminate their old
purchase contracts
and enter into new purchase contracts with purchasers of the
Certificates, then
"Time of Sale Information" will refer to the information conveyed
to purchasers
at the time of entry into the first such new purchase contract,
including any
information that corrects such material misstatements or omissions
("Corrective
Information") and "Time of Sale" will refer to the time and date on
which such
new purchase contracts were entered into.
1.
Representations and Warranties.
(a) The
Depositor represents and warrants to the Underwriters as
follows:
(i) The
Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and
no proceedings for such purpose are pending or, to the Depositor's
knowledge,
threatened by the Commission; the Registration Statement as of its
effective
date or deemed effective date pursuant to Rule 430B under the 1933
Act (the
"Effective Date"), and the Prospectus, as of the date of the
Prospectus
Supplement, complied in all material respects with the applicable
requirements
of the 1933 Act and the rules and regulations thereunder (the "1933
Act
Regulations"); and the information in the Registration Statement,
as of the
Effective Date, did not contain any untrue statement of a material
fact and
did not omit to state any material fact required to be stated
therein or
necessary
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to make the statements therein not misleading and the information
in the
Prospectus, as of the date of the Prospectus Supplement, did not,
and as of
the Closing Date (as hereinafter defined) will not, contain an
untrue
statement of a material fact and did not and will not omit to state
a material
fact necessary in order to make the information therein, in the
light of the
circumstances under which they were made, not misleading, provided,
however,
that the Depositor makes no representations, warranties or
agreements as to
the information contained in the Prospectus or any revision or
amendment
thereof or supplement thereto in reliance upon and in conformity
with
information furnished in writing to the Depositor by any
Underwriter on behalf
of itself or the other Underwriters specifically for use in
connection with
the preparation of the Prospectus or any revision or amendment
thereof or
supplement thereto (the "Underwriter Information"). The
Underwriter
Information shall consist of the [specify paragraphs] of the
section of the
Prospectus Supplement entitled "Plan of Distribution" and the
[specify
sentences] of the last paragraph on the cover page of the
Prospectus
Supplement.
(ii) The Time of
Sale Information, at the Time of Sale, did not,
and at the Closing Date will not, contain any untrue statement of a
material
fact or omit to state a material fact necessary in order to make
the
statements therein, in the light of the circumstances under which
they were
made, not misleading; provided that the Depositor makes no
representation and
warranty with respect to any statements or omissions made in
reliance upon and
in conformity with the Underwriter Information. The parties
acknowledge that
none of the Underwriters has furnished any Underwriter Information
to the
Depositor expressly for use in the Time of Sale Information.
(iii) Other than
the Prospectus, the Depositor (including its
agents and representatives other than the Underwriters in their
capacity as
such) has not made, used, prepared, authorized, approved or
referred to and
will not make, use, prepare, authorize, approve or refer to any
"written
communication" (as defined in Rule 405 under the 1933 Act) that
constitutes an
offer to sell or solicitation of an offer to buy the Certificates
other than
(i) any document not constituting a prospectus pursuant to Section
2(a)(10)(a)
of the 1933 Act or Rule 134 under the 1933 Act, (ii) the Time of
Sale
Information, and (iii) each other written communication of the
Depositor or
its agents and representatives approved by the Underwriters either
in writing
in advance or in any other manner mutually agreed to by the
Underwriters and
the Depositor (each such communication referred to in clause (ii)
and this
clause (iii) constituting an "issuer free writing prospectus", as
defined in
Rule 433(h) under the 1933 Act, being referred to as an "Issuer
Free Writing
Prospectus"). Each such Issuer Free Writing Prospectus complied or,
if used
after the date hereof, will comply, in all material respects with
the 1933 Act
and the rules and regulations promulgated thereunder, has been
filed or will
be filed in accordance with Section 4 (to the extent required
thereby) and did
not at the Time of Sale, and at the Closing Date will not, contain
any untrue
statements of a material fact or (when read in conjunction with the
other Time
of Sale Information) omit to state a material fact necessary in
order to make
the statements therein, in the light of the circumstances under
which they
were made, not misleading; provided that the Depositor makes no
representation
and warranty with respect to any statements or omissions made in
reliance upon
and in conformity with the Underwriter Information. The parties
acknowledge
that none of the Underwriters has furnished any Underwriter
Information to the
Depositor expressly for use in any Issuer Free Writing
Prospectus.
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(iv) The
Depositor has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of
Delaware with corporate power and authority to enter into and
perform its
obligations under this Agreement and the Pooling and Servicing
Agreement.
(v) The
execution, delivery and performance of this Agreement and
the Pooling and Servicing Agreement by the Depositor and the
consummation of
the transactions contemplated herein and therein by the Depositor
and
compliance by the Depositor with its obligations hereunder and
thereunder have
been duly authorized by all necessary corporate action and will not
(A)
contravene any provision of the certificate of incorporation or
by-laws of the
Depositor or applicable law or (B) conflict with or constitute a
breach of or
default under, or result in the creation or imposition of any lien,
charge or
encumbrance upon any property or assets of the Depositor pursuant
to, any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument
to which the Depositor is a party or by which it may be bound or to
which any
of the property or assets of the Depositor is subject, which
conflict, breach,
default, lien, charge or encumbrance is reasonably likely to
materially and
adversely affect the Depositor's ability to perform its obligations
under this
Agreement or the Pooling and Servicing Agreement.
(vi) The
Certificates have been duly authorized for issuance and
sale (or will have been so authorized prior to the issuance
thereof) pursuant
to this Agreement and the Pooling and Servicing Agreement. When
issued,
authenticated and delivered pursuant to the provisions of this
Agreement and
of the Pooling and Servicing Agreement against payment of the
consideration
therefor in accordance with this Agreement, the Certificates will
be duly and
validly issued and outstanding and entitled to the benefits
provided by the
Pooling and Servicing Agreement, except as the enforceability
thereof may be
limited by the effect of (A) bankruptcy, insolvency,
reorganization,
receivership, moratorium or other similar laws affecting the
enforcement of
the rights of creditors generally, and (B) general principles of
equity,
whether enforcement is sought in a proceeding in equity or at law.
The
Certificates and the Pooling and Servicing Agreement conform in all
material
respects to all statements relating thereto contained in the
Prospectus.
(vii) No
authorization, approval or consent of any court or
governmental authority or agency is necessary in connection with
the offering,
issuance or sale of the Certificates hereunder, except such as have
been, or
as of the Closing Date will have been, obtained or such as may
otherwise be
required under applicable state securities laws in connection with
the
purchase and offer and sale of the Certificates by the Underwriters
and any
recordation of the respective assignments of the Mortgage Loans to
the Trustee
pursuant to the Pooling and Servicing Agreement that have not yet
been
completed.
(viii)
This Agreement has been, and as of the Closing Date the
Pooling and Servicing Agreement will be, duly authorized, executed
and
delivered by the Depositor. This Agreement constitutes, and as of
the Closing
Date the Pooling and Servicing Agreement will constitute, a legal,
valid and
binding agreement enforceable against the Depositor in accordance
with its
terms, except as such enforceability may be limited by the effect
of (A)
bankruptcy, insolvency, reorganization, receivership, moratorium or
other
similar laws affecting the enforcement of the rights of creditors
generally,
(B) general principles of equity, whether
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<PAGE>
enforcement is sought in a proceeding in equity or at law, and (C)
public
policy considerations underlying the securities laws, to the extent
that such
public policy considerations limit the enforceability of the
provisions of
this Agreement that purport or are construed to provide
indemnification from
securities law liabilities.
(ix)
At the time of the
execution and delivery of the Pooling and
Servicing Agreement, the Depositor (A) will convey to the Trustee,
or cause to
be conveyed to the Trustee, all of the Depositor's right, title and
interest
in and to the Mortgage Loans, free and clear of any lien, mortgage,
pledge,
charge, encumbrance, adverse claim or other security interest
(collectively
"Liens") granted by or imposed upon the Depositor, (B) will not
have assigned
to any other person any of its right, title or interest in the
Mortgage Loans
or in the Pooling and Servicing Agreement or the Certificates, and
(C) will
have the power and authority to transfer or cause to be transferred
its right,
title and interest in the Mortgage Loans to the Trustee and to sell
the
Certificates to the Underwriters. Upon execution and delivery of
the Pooling
and Servicing Agreement by the Trustee, the Trustee will have
acquired
ownership of all of the Depositor's right, title and interest in
and to the
Mortgage Loans except to the extent disclosed in the Prospectus,
and upon
delivery to the Underwriters of the Certificates pursuant hereto,
each
Underwriter will have good title to the Certificates purchased by
such
Underwriter, in each case free of Liens granted by or imposed upon
the
Depositor.
(x) The Depositor is
not, and the issuance and sale of the
Certificates in the manner contemplated by the Prospectus will not
cause the
Depositor or the Trust Fund to be, subject to registration or
regulation as an
"investment company" under the Investment Company Act of 1940, as
amended (the
"1940 Act").
(xi) Under generally accepted accounting principles ("GAAP")
and
for federal income tax purposes, the Depositor will report the
transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and
the sale of
the Certificates to the Underwriters pursuant to this Agreement as
a sale of
the interest in the Mortgage Loans evidenced by the Certificates.
The
consideration received by the Depositor upon the sale of the
Certificates to
the Underwriters will constitute at least reasonably equivalent
value and fair
consideration for the Certificates. The Depositor will be solvent
at all
relevant times prior to, and will not be rendered insolvent by, the
sale of
the Certificates to the Underwriters. The Depositor is not selling
the
Certificates to the Underwriters with any intent to hinder, delay
or defraud
any of the creditors of the Depositor.
(xii) The Depositor has not relied on the Underwriters for any
tax,
regulatory, accounting or other advice with respect to compliance
with or
registration under any statute, rule or regulation of any
governmental,
regulatory, administrative or other agency or authority. The
Depositor
acknowledges and agrees that (i) the terms of this Agreement and
the offering
(including the price of the Certificates) were negotiated at arm's
length
between sophisticated parties represented by counsel; (ii) no
fiduciary,
advisory or agency relationship between the Depositor and the
Underwriters has
been created as a result of any of the transactions contemplated by
this
Agreement, irrespective of whether any Underwriter has advised or
is advising
the Depositor on other matters; (iii) the Underwriters' obligations
to the
Depositor in respect of the offering, and the purchase and sale, of
the
Certificates are set forth in this Agreement in their entirety; and
(iv) it
has obtained such legal, tax, accounting and other advice as it
deems
appropriate with respect to this Agreement and the transactions
contemplated
hereby
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and any other activities undertaken in connection therewith, and it
is
not relying on the Underwriters with respect to any such
matters.
(xiii) The Trust Fund (other than those portions specified in
the
Pooling and Servicing Agreement) will qualify as [__________]
separate real
estate mortgage investment conduits (each, a "REMIC") for federal
income tax
purposes pursuant to Section 860D of the Internal Revenue Code of
1986, as
amended (the "Code"); the Class R Certificates will evidence the
sole class of
"residual interests" in each related REMIC.
(xiv) There are no legal or governmental proceedings pending or,
to
the knowledge of the Depositor, threatened to which the Depositor
is a party
or to which any of the properties of the Depositor are subject that
are
required to be described in the Prospectus or the Time of Sale
Information or
necessary in order to make the statements therein in the light of
the
circumstances under which they were made, not misleading and that
are not so
described, nor are there any contracts or other documents to which
the
Depositor is a party or to which the Depositor or any of the
properties of the
Depositor are subject that are required to be described in the
Prospectus.
(xv) At the Closing Date, the respective classes of
Certificates
shall have been
assigned ratings no lower than those set forth in Schedule I hereto
by the
nationally recognized statistical rating organizations identified
in Schedule I
hereto (the "Rating Agencies").
(xvi) Any taxes, fees and other governmental charges in
connection
with the execution, delivery and issuance of this Agreement, the
Pooling and
Servicing Agreement and the Certificates payable by the Depositor
(other than
income taxes) have been paid or will be paid at or prior to the
Closing Date.
(xvii) None of the Depositor or any of its affiliates does
business
with the government of Cuba or with any person or affiliate located
in Cuba
within the meaning of Section 517.075, Florida Statutes.
(xviii) The Depositor is not, and on the date on which the
first
bona fide offer of the Certificates is made (within the meaning of
Rule
164(h)(2) under the 1933 Act) will not be, an "ineligible issuer,"
as defined
in Rule 405 under the 1933 Act.
(b) Each Underwriter represents and warrants to the Depositor
that,
as of the date hereof and as of the Closing Date, such Underwriter
has
complied with all of its obligations hereunder.
2.
Purchase and
Sale.
Subject to
the terms and conditions herein set forth and in reliance
upon the representations and warranties herein contained, the
Depositor shall
sell to the Underwriters, and each Underwriter shall, severally and
not
jointly, purchase from the Depositor, at the related purchase price
set forth
on Schedule I hereto, Certificates of each class thereof having an
actual or
notional amount as set forth on Schedule I hereto opposite their
names. [There
will be added to the purchase price of the Certificates an amount
equal to
interest accrued thereon pursuant to the terms thereof from
[__________] to
but excluding the Closing Date.]
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3.
Delivery and
Payment.
Payment of
the aggregate purchase price for, and delivery of, the
Certificates shall be made at [10:00 a.m.] New York City time on
[insert
closing date], which date and time may be postponed by agreement
between the
Underwriters and the Depositor (such time and date of payment and
delivery,
the "Closing Date"). Payment shall be made to the Depositor by
the
Underwriters of the purchase prices of the Certificates as set
forth in
Schedule I in immediately available Federal funds wired to such
bank as may be
designated by the Depositor, against delivery of the Certificates.
Delivery of
the Certificates will be made in book-entry form through the
facilities of The
Depository Trust Company ("DTC"). Each class of Certificates will
be
represented by one or more definitive global Certificates to be
deposited by
or on behalf of the Depositor with DTC or the Trustee. The
Certificates will
be made available for examination by the Underwriters not later
than [10:00
a.m.] New York City time on the last business day prior to the
Closing Date.
The closing of the transactions contemplated hereby shall be made
at the
offices of [specify name and address of Depositor's counsel], or at
such other
place as shall be agreed upon by the Underwriters and the
Depositor.
4.
Offering by
Underwriters; Free Writing Prospectuses.
(a) It is
understood that the Underwriters propose to offer the
Certificates for sale as set forth in the Prospectus. It is further
understood
that the Depositor, in reliance upon Policy Statement 105, has not
and will
not file an offering statement pursuant to Section 352-e of the
General
Business Law of the State of New York with respect to the
Certificates. Each
Underwriter severally and not jointly therefore agrees that sales
of the
Certificates made by such Underwriter in and from the State of New
York will
be made only to institutional investors within the meaning of
Policy Statement
105.
(b) In
connection with the offering of the Certificates, the
Underwriters may each prepare and provide to prospective investors
Free
Writing Prospectuses (as defined below), or portions thereof,
subject to the
following conditions (to which such conditions each Underwriter
agrees
(provided that no Underwriter shall be responsible for any breach
of the
following conditions by any other Underwriter)):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriters shall not convey or deliver any written communication
to
any person
in connection with the initial offering of the Certificates,
unless
such written communication (1) is made in reliance on Rule 134
under the
1933 Act, (2) constitutes a prospectus satisfying the
requirements of Rule 430B under the 1933 Act, or (3) constitutes
Time of
Sale
Information or a Free Writing Prospectus that does not
constitute
Time of
Sale Information. [The Underwriters shall not convey or deliver
in
connection with the initial offering of the Certificates any
"computational materials" or "ABS term sheets" in reliance on
the
"Kidder/PSA" no action letters or any "ABS informational and
computational material," as defined in Item 1101(a) of Regulation
AB
under the
1933 Act ("ABS Informational and Computational Material"), in
reliance
upon Rules 167 and 426 under the 1933 Act.]
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(ii) Each Underwriter
shall deliver to the Depositor, no later
than two
business days prior to the date of first use thereof or such
later date
as may be agreed to by the Depositor, (a) any Free Writing
Prospectus
that was prepared by or on behalf of such Underwriter (an
"Underwriter Free Writing Prospectus") and that contains any
"issuer
information," as defined in Rule 433(h) under the 1933 Act and
footnote
271 of the
Commission's Securities Offering Reform Release No. 33-8591
("Issuer
Information") (which the parties hereto agree includes, without
limitation, Mortgage Loan Seller Information), and (b) any Free
Writing
Prospectus
or portion thereof prepared by or on behalf of such
Underwriter that contains only a description of the final terms of
the
Certificates. Notwithstanding the foregoing, any Free Writing
Prospectus
that
contains only ABS Informational and Computational Materials may
be
delivered
by an Underwriter to the Depositor not later than the later of
(A) two
business days prior to the due date for filing of the
Prospectus
pursuant
to Rule 424(b) under the 1933 Act or such later date as may be
agreed to
by the Depositor or (B) the date of first use of such Free
Writing
Prospectus.
(iii) Each Underwriter represents and warrants to the Depositor
that the
Free Writing Prospectuses to be furnished to the Depositor by
such
Underwriter pursuant to Section 4(b)(ii) will constitute all
Free
Writing
Prospectuses of the type described therein that were furnished
to
prospective investors by such Underwriter in connection with
its
offer and
sale of the Certificates.
(iv) Each Underwriter
represents and warrants to the Depositor
that each
Free Writing Prospectus required to be provided by it to the
Depositor
pursuant to Section 4(b)(ii) did not, as of the Time of Sale,
and will
not as of the Closing Date, include any untrue statement of a
material
fact or omit any material fact necessary to make the statements
contained
therein (when read in conjunction with the Time of Sale
Information), in light of the circumstances under which they were
made,
not
misleading; provided however, that such Underwriter makes no
representation to the extent such misstatements or omissions were
the
result of
any inaccurate Issuer Information, which information was not
corrected
by Corrective Information subsequently supplied by the
Depositor
[or any Mortgage Loan Seller] to such Underwriter within a
reasonable
period of time prior to the Time of Sale.
(v) The Depositor agrees to file with the Commission the
following:
(A) Any Issuer
Free Writing Prospectus;
(B) Any Free
Writing Prospectus or portion thereof
delivered by any Underwriter to the Depositor pursuant to
Section
4(b)(ii); and
(C) Any Free Writing Prospectus for which the Depositor or
any person acting on its behalf provided, authorized or
approved
information that is prepared and published or disseminated by a
person unaffiliated with the Depositor or any other offering
participant that is in the business of publishing, radio or
television broadcasting or otherwise disseminating
communications.
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Notwithstanding the foregoing, the Depositor shall not be
required
to file (1) Issuer Information contained in any Underwriter
Free
Writing Prospectus or Free Writing Prospectus of any other
offering
participant other than the Depositor, if such information is
included or incorporated by reference in a prospectus or Free
Writing Prospectus previously filed with the Commission that
relates
to the offering of the Certificates, or (2) any Free Writing
Prospectus or portion thereof that contains a description of
the
Certificates or the offering of the Certificates which does not
reflect the final terms thereof.
The Depositor is required to file such Free Writing
Prospectuses
with the Commission in electronic format and the Underwriters
shall
use reasonable efforts to provide to the Depositor such Free
Writing
Prospectuses, or portions thereof, in either Microsoft Word(R)
or
Microsoft Excel(R) format and not in a PDF, except to the
extent
that the Depositor, in its sole discretion, waives such
requirements,
(vi) Any Free Writing Prospectus required to be filed pursuant
to Section
4(b)(v) by the Depositor shall be filed with the Commission
not later
than the date of first use of the Free Writing Prospectus,
except
that:
(A) Any Free Writing Prospectus or portion thereof required
to be filed that contains only the description of the final
terms
of the Certificates shall be filed by the Depositor with the
Commission within two days of the later of the date such final
terms have been established for all classes of Certificates and
the date of first use;
(B) Any Free Writing Prospectus or portion thereof required
to be filed that contains only ABS Informational and
Computational
Material shall be filed by the Depositor with the Commission
not
later than the later of the due date for filing the final
Prospectus relating to the Certificates pursuant to Rule 424(b)
under the 1933 Act or two business days after the first use of
such Free Writing Prospectus; and
(C) Any Free Writing
Prospectus required to be filed
pursuant to Section 4(b)(v)(C) shall, if no payment has been
made
or consideration has been given by or on behalf of the
Depositor
for the Free Writing Prospectus or its dissemination, be filed
by
the Depositor with the Commission not later than four business
days after the Depositor becomes aware of the publication,
radio
or television broadcast or other dissemination of the Free
Writing
Prospectus.
(vii) Each Underwriter shall file with the Commission any Free
Writing
Prospectus that is used or referred to by it and distributed by
or on
behalf of such Underwriter in a manner reasonably designed to
lead
to its broad,
unrestricted dissemination not later than the date of the
first use
of such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section 4(b)(vii),
each
Underwriter shall file with the Commission any Free Writing
Prospectus
for which such Underwriter or any person acting on its behalf
provided,
authorized or approved
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<PAGE>
information that is prepared and published or disseminated by a
person
unaffiliated with the Depositor or any other offering participant
that
is in the
business of publishing, radio or television broadcasting or
otherwise
disseminating written communications and for which no payment
was made
or consideration given by or on behalf of the Depositor or any
other
offering participant, not later than four business days after
such
Underwriter becomes aware of the publication, radio or
television
broadcast
or other dissemination of the Free Writing Prospectus.
(ix) Notwithstanding the provisions of Sections 4(b)(v) and
4(b)(vii),
neither the Depositor nor any Underwriter shall be required
to file
any Free Writing Prospectus that does not contain substantive
changes from or
additions to a Free Writing Prospectus previously filed
with the
Commission, and no Underwriter shall be required to file any
Free
Writing Prospectus to the extent that the information contained
therein is
included in a prospectus or Free Writing Prospectus
previously
filed that relates to the offering of the Certificates.
(x) The Depositor and the Underwriters each agree that any
Free
Writing Prospectuses prepared by it shall contain the following
legend, or
substantially equivalent legend that complies with Rule 433
of the
1933 Act:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents
the depositor has filed with the SEC for more complete
information about the depositor, the issuing trust, and this
offering. You may get these documents for free by visiting
EDGAR on the SEC Web site at www.sec.gov. Alternatively, the
depositor, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you
request it by calling toll-free [1-866-718-1649].
(xi) The Depositor and each Underwriter agree to retain all
Free
Writing Prospectuses that they have used and that are not
required
to be
filed pursuant to this Section 4 for a period of three years
following
the initial bona fide offering of the Certificates.
(xii) (A) If the Depositor becomes aware that, as of the Time
of Sale,
any Issuer Free Writing Prospectus delivered to an investor in
any
Certificate contained any untrue statement of a material fact
or
omitted to
state a material fact necessary in order to make the
statements
contained therein (when read in conjunction with the Time of
Sale
Information), in light of the circumstances under which they
were
made, not
misleading (a "Defective Issuer Free Writing Prospectus"), the
Depositor
shall notify the Underwriters of such untrue statement or
omission
within one business day after discovery and the Depositor
shall, if
requested by the Underwriters, prepare and deliver to the
Underwriters a Free Writing Prospectus that corrects the
material
misstatement or omission in the Defective Issuer Free Writing
Prospectus
(such
corrected Issuer Free Writing Prospectus, a "Corrected Issuer
Free
Writing
Prospectus").
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<PAGE>
(B) If any Underwriter
becomes aware that, as of the
Time of Sale, any Underwriter Free Writing Prospectus delivered
to
an investor in any Certificates contained any untrue statement
of
a material fact or omitted to state a material fact necessary
in
order to make the statements contained therein (when read in
conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading
(together
with a Defective Issuer Free Writing Prospectus, a "Defective
Free
Writing Prospectus"), such Underwriter shall notify the
Depositor
of such untrue statement or omission within one business day
after
discovery.
(C) The Underwriters
shall, if requested by the
Depositor:
(1) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus that corrects the material misstatement in or
omission from the Defective Free Writing Prospectus
(together with a Corrected Issuer Free Writing Prospectus, a
"Corrected Free Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to
each investor which received the Defective Free Writing
Prospectus prior to entering into a contract of sale with
such investor;
(3) notify such investor in a prominent fashion that
the prior contract of sale with the investor has been
terminated, and of the investor's rights as a result of
termination of such agreement;
(4) provide such investor with an opportunity to
affirmatively agree to purchase the Certificates on the
terms described in the Corrected Free Writing Prospectus;
and
(5) comply with any other requirements for
reformation of the original contra
