EXHIBIT 1.1
MORGAN STANLEY CAPITAL I INC.
[COMMERCIAL] MORTGAGE PASS-THROUGH CERTIFICATES,
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 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 [Commercial] Mortgage Pass-Through Certificates 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 [multifamily and
commercial]
[residential] mortgage loans (the "Mortgage Loans").
[Certain
of 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 special servicer], as
special
servicer], [name of primary servicer], as servicer [name of
trustee/paying
agent/certificate registrar], as trustee, paying agent and
certificate
registrar.
<PAGE>
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-[insert applicable
registration
statement number]) on Form S-3 for the registration of the
Certificates under
the Securities Act of 1933, as amended (the "1933 Act"), which
registration
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
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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 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 (A) 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"), or [(B) any information contained in or omitted from
the portions
of the Prospectus Supplement for which the Mortgage Loan Sellers
are obligated
to indemnify the Underwriters under the Indemnification Agreements,
each dated
as of [insert date], between the respective Mortgage Loan Seller,
the Depositor
and the Underwriters (the "Mortgage Loan Seller Information") and
provided,
further, that the Depositor makes no representations or warranties
regarding
untrue statements or omissions in the portions of the Prospectus
Supplement
under the heading "Yield, Prepayment and Maturity Considerations"
that arise out
of or are based upon untrue statements or omissions in the Mortgage
Loan Seller
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
(A) any statements or omissions made in reliance upon and in
conformity with the
Underwriter Information [or (B) any Mortgage Loan Seller
Information contained
in or omitted from such Time of Sale 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
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<PAGE>
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 (i) any statements or omissions made in
reliance upon
and in conformity with the Underwriter Information [or (ii) any
Mortgage Loan
Seller Information contained in or omitted from any Issuer Free
Writing
Prospectus]. 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.
(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.
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<PAGE>
(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 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
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<PAGE>
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 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 [three] 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 REMIC [III] Regular Certificates will constitute
"regular
interests" in a REMIC; and 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.
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<PAGE>
(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 [insert cut-off date] to
but
excluding the Closing Date.
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
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<PAGE>
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.
(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
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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.
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
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<PAGE>
(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 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
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<PAGE>
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").
(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 Pros
