Exhibit 99.2
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EXECUTION COPY
MORGAN STANLEY CAPITAL I INC.
MORTGAGE PASS-THROUGH CERTIFICATES
Series 2006-9AR
UNDERWRITING AGREEMENT
New York, New York
July 26, 2006
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York
10036
Dear Sirs and Madams:
Morgan Stanley Capital I Inc., a Delaware corporation (the
"Company"), proposes to sell to you as representative (the
"Underwriter") the
Morgan Stanley Mortgage Loan Trust 2006-9AR (the "Issuing Entity"),
Mortgage
Pass-Through Certificates, Series 2006-9AR in the classes and in
the
respective original principal or notional amounts and with the
designations
described on Schedule A attached hereto (the "Securities"). The
Securities,
along with the Class OC and Class P Certificates (the "Private
Securities"),
will be issued pursuant to a pooling and servicing agreement dated
as of July
1, 2006 (the "Pooling and Servicing Agreement") among the Company,
as
depositor, Wells Fargo Bank, National Association ("Wells Fargo"),
as the
master servicer (the "Master Servicer") and as securities
administrator (the
"Securities Administrator"), Morgan Stanley Mortgage Capital Inc.,
as seller
("MSMCI"), and LaSalle Bank National Association, as trustee (the
"Trustee").
The Securities will represent undivided beneficial ownership
interests in a
trust fund consisting primarily of a pool of adjustable-rate
mortgage loans,
and hybrid adjustable-rate mortgage loans (the "Mortgage Loans"),
secured by
first liens on one- to four-family residential properties. The
Mortgage Loans
may be sold to the Depositor pursuant to various mortgage loan
purchase
agreements (such agreements, the "Mortgage Loan Purchase
Agreements" and the
"Servicing Agreements," respectively) between MSMCI and one or more
sellers
(the "Sellers"), a mortgage loan purchase agreement between MSMCI
and the
Depositor and assignment, assumption and recognition agreements
between the
Depositor, MSMCI, the Trustee and each Seller and/or servicer (each
servicer,
a "Servicer") (collectively, the "Assignment Agreements"), as
applicable.
The Company has filed with the Securities and Exchange
Commission
(the "Commission") a registration statement, including a
prospectus, relating
to the Securities and has filed with the Commission one or more
free writing
prospectuses (together, the "Free Writing Prospectus") and
prospectus
supplement (the "Prospectus Supplement") specifically relating to
the
Securities pursuant to Rule 424 under the Securities Act of 1933
(the
"Securities Act") and the rules and regulations thereunder (the
"Securities
Act Regulations"). The term Registration Statement means such
registration
statement as amended to the date of the Underwriting Agreement. The
term Base
Prospectus means the prospectus included in the Registration
Statement. The
term Prospectus means the Base Prospectus together with the
Prospectus
Supplement specifically relating to the Securities, as filed with
the
Commission pursuant to Rule 424. The term free writing prospectus
means any
free writing prospectus, as defined in Rule 405
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of the Securities Act. Any reference in this underwriting agreement
(the
"Agreement") to the Registration Statement or the Prospectus shall
be deemed
to refer to and include the documents incorporated by reference
therein
pursuant to Item 12 of Form S-3 under the Securities Act, as of the
effective
date of the Registration Statement or the Prospectus, as the case
may be.
Terms not otherwise defined in this Agreement are used in this
Agreement as
defined in the Pooling and Servicing Agreement.
The term "Disclosure Package" means (i) the Base Prospectus, as
most recently amended or supplemented immediately prior to the
Initial Sale
Time (as defined herein) and (ii) any Free Writing Prospectus that
the parties
hereto shall hereafter expressly agree to treat as part of the
Disclosure
Package. If, subsequent to the date of this Agreement, the Company
and the
Underwriter have determined that the Disclosure Package 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 have terminated their old
purchase
contracts and entered into new purchase contracts with purchasers
of the
Securities, then the "Disclosure Package" will refer to the
information
available 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").
I.
The Company represents and warrants to and agrees with the
Underwriter that:
(a) 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 before or threatened
by
the
Commission.
(b) (i) Each part of the Registration Statement, when such part
became
effective, did not contain, and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement
of a
material
fact or omit to state a material fact required to be stated
therein or
necessary to make the statements therein not misleading, (ii)
the
Registration Statement, the Disclosure Package and the
Prospectus
comply,
and, as amended or supplemented, if applicable, will comply in
all
material respects with the Securities Act and the applicable
rules
and
regulations of the Commission thereunder and (iii) each of the
Disclosure
Package and the Prospectus does not contain and, as amended
or
supplemented, if applicable, will not contain any untrue statement
of
a material
fact or omit to state a material fact necessary to make the
statements
therein, in the light of the circumstances under which they
were made,
not misleading, except that the representations and
warranties
set forth in this paragraph I(b) do not apply to statements
or
omissions in the Registration Statement, the Disclosure Package
or
the
Prospectus based upon and in conformity with information relating
to
the
Underwriter furnished to the Company in writing by the
Underwriter
expressly
for use or incorporation therein.
(c) The Company has been duly incorporated, is validly existing
as
a
corporation in good standing under the laws of the State of
Delaware,
has the
corporate power and authority to own its property and to
conduct
its
business as described in
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the
Prospectus and to enter into and perform its obligations under
this
Agreement
and the Pooling and Servicing Agreement.
(d) This Agreement has been duly authorized, executed and
delivered
by the Company.
(e) Each of the Pooling and Servicing Agreement and the
Assignment
Agreements
has been duly authorized, executed and delivered by the
Company
and is a valid and binding agreement of the Company,
enforceable
in
accordance with its terms except as the enforceability thereof may
be
limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights
generally and to general principles of equity regardless of
whether
enforcement is sought in a proceeding in equity or at law.
(f) The direction by the Company to the Securities
Administrator
to
execute, authenticate and deliver the Securities has been duly
authorized
by the Company, and the Securities, when executed and
authenticated in the manner contemplated in the Pooling and
Servicing
Agreement,
and delivered to and paid for by the Underwriter in
accordance
with the terms of this Agreement, will be validly issued and
outstanding and entitled to the benefits of the Pooling and
Servicing
Agreement.
(g) Neither the execution and delivery by the Company of, nor
the
performance by the Company of its obligations under, this
Agreement, the
Pooling
and Servicing Agreement and the Assignment Agreements, will
contravene
any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or
other
instrument
binding upon the Company that is material to the Company or
any
judgment, order or decree of any governmental body, agency or
court
having
jurisdiction over the Company or any subsidiary, and no
consent,
approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
the
Company of
its obligations under this Agreement, the Pooling and
Servicing
Agreement and the Assignment Agreements, except such as may be
required
by the securities or Blue Sky laws of the various states in
connection
with the offer and sale of the Securities.
(h) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in
the
condition,
financial or otherwise, or in the earnings, business or
operations
of the Company and its subsidiaries, taken as a whole, from
that set
forth in the Prospectus.
(i) There are no legal or governmental proceedings pending or
threatened
to which the Company is a party or to which any of the
properties
of the Company are subject that are required to be described
in the
Registration Statement, the Disclosure Package or the
Prospectus
and that
are not so described, nor are there any statutes, regulations,
contracts
or other documents required to be described in the
Registration Statement, the Disclosure Package or the Prospectus or
to
be filed
as exhibits to the Registration Statement that are not
described
or filed as required.
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(j) Each preliminary prospectus filed as part of the
Registration
Statement
as originally filed or as a part of any amendment thereto, or
filed
pursuant to Rule 424 under the Securities Act, complied as to
form, when
so filed, in all material respects with the Securities Act
and the
rules and regulations of the Commission thereunder.
(k) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined
in
the
Investment Company Act of 1940, as amended (the "Investment
Company
Act").
(l) the Company is eligible to use Free Writing Prospectuses in
connection
with this offering pursuant to Rules 164 and 433 of the
Securities
Act Regulations; any Free Writing Prospectus that the Company
is
required to file pursuant to Rule 433(d) under the Securities
Act
Regulations has been, or will be, filed with the Commission in
accordance
with the requirements of the Securities Act and the
Securities
Act Regulations; and each Free Writing Prospectus that the
Company
has filed, or is required to file, pursuant to Rule 433(d)
under
the
Securities Act Regulations or that was prepared by or on behalf
of
or used by
the Company complies or will comply in all material respects
with the
requirements of the Securities Act and the Securities Act
Regulations.
(m) The characteristics of the Issuing Entity will not subject
the
Issuing
Entity to registration as an "investment company" under the
Investment
Company Act.
II.
MSMCI represents and warrants to and agrees with the
Underwriter
that:
(a) MSMCI has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the State of New
York,
has the
corporate power and authority to own its property and to
conduct
its
business as described in the Prospectus and to enter into and
perform
its obligations under this Agreement and the Pooling and
Servicing
Agreement.
(b) This Agreement has been duly authorized, executed and
delivered
by MSMCI.
(c) Each of the Pooling and Servicing Agreement, the Mortgage
Loan
Purchase
Agreements and the Assignment Agreements has been duly
authorized, executed and delivered by MSMCI and is a valid and
binding
agreement
of MSMCI, enforceable in accordance with its terms except as
the
enforceability thereof may be limited by bankruptcy, insolvency
or
similar
laws affecting creditors' rights generally and to general
principles
of equity regardless of whether enforcement is sought in a
proceeding
in equity or at law.
(d) Neither the execution and delivery by MSMCI of, nor the
performance by the Company of its obligations under, the Pooling
and
Servicing
Agreement, the Mortgage Loan Purchase Agreements and the
Assignment
Agreements, will contravene any provision of applicable law
or the
certificate of incorporation or by-laws of MSMCI or any
agreement
or other
instrument binding upon MSMCI that is material to MSMCI or
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any
judgment, order or decree of any governmental body, agency or
court
having
jurisdiction over MSMCI or any subsidiary, and no consent,
approval,
authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
MSMCI of
its
obligations under the Pooling and Servicing Agreement, the
Mortgage
Loan
Purchase Agreements and the Assignment Agreements.
III.
The Company hereby agrees to sell the Securities to the
Underwriter, and the Underwriter, upon the basis of the
representations and
warranties contained in this Agreement, but subject to the
conditions stated
in this Agreement, agrees to purchase the Securities from the
Company, for a
purchase price that is the sum of (i) 100.00% of the original
principal amount
of the Securities and (ii) accrued interest, if any, from the
Closing Date to
the date of payment and delivery.
IV.
A. The Underwriter proposes to make a public offering of the
Securities as soon as the Underwriter deems advisable after this
Agreement has
been executed and delivered. The terms of the public offering of
the
Securities are set forth in the Prospectus.
B. In connection with the offering of the Securities, the
Underwriter may prepare and provide to prospective investors Free
Writing
Prospectuses, or portions thereof, which the Company is required to
file with
the Commission in electronic format and will use reasonable efforts
to provide
to the Company 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 Company, in its sole discretion, waives such
requirements,
subject to the following conditions (to which such conditions the
Underwriter
agrees):
(i) "Business Day" shall mean any day other than (i) a
Saturday or Sunday or (ii) a day on which banking institutions
in
the State of New York or the jurisdiction in which the offeree
is
located are required or authorized by law or executive order to
be
closed.
(ii) Unless preceded or accompanied by the Base Prospectus,
the Underwriter shall not convey or deliver any written
communication to any person in connection with the initial
offering of the Securities, unless such written communication
(1)
is made in reliance on Rule 134 of the Securities Act
Regulations,
(2) constitutes a prospectus satisfying the requirements of
Rule
430B of the Securities Act Regulations or (3) constitutes a
Free
Writing Prospectus and such Free Writing Prospectus is attached
to
this Agreement as Schedule B. The Underwriter shall not convey
or
deliver in connection with the initial offering of the
Securities
any "ABS informational and computational material," as defined
in
Item 1101(a) of Regulation AB of the Securities Act Regulations
("ABS Informational and Computational Material"), in reliance
upon
Rules 167 and 426 of the Securities Act Regulations in lieu of
a
free writing prospectus.
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(iii) The Underwriter shall deliver to the Depositor, (a) no
later than two Business Days prior to the date of first use
thereof, any Free Writing Prospectus prepared by or on behalf
of
such Underwriter that contains any "issuer information," as
defined in Rule 433(h) of the Securities Act Regulations and
footnote 271 of the Commission's Securities Offering Reform
Release No. 33-8591 ("Issuer Information") (which the parties
hereto agree includes, without limitation, Pool Information (as
defined herein)), and (b) upon first use, any Free Writing
Prospectus or portion thereof that contains only a description
of
the final terms of the Securities. Notwithstanding the
foregoing,
any Free Writing Prospectus that contains only ABS
Informational
and Computational Materials shall be delivered by any
Underwriter
to the Company 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) of the Securities Act Regulations and (b) the date
of
first use of such Free Writing Prospectus.
(iv)
The Underwriter represents and warrants to the Company
that the Free Writing Prospectuses to be furnished to the
Company
by the Underwriter pursuant to Section 3(b)(ii) above will
constitute all Free Writing Prospectuses of the type described
in
such Section that were furnished to prospective investors by
such
Underwriter in connection with its offer and sale of the
Securities.
(v) The Underwriter represents and warrants to the Company
that each Free Writing Prospectus required to be provided by it
to
the Company pursuant to Section 3(b)(ii) above, 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, when read in
conjunction
with the other information included in the Disclosure Package,
omit any material fact necessary to make the statements
contained
therein, 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 supplied by the
Company to such Underwriter, which information was not
corrected
by Corrective Information subsequently supplied by the Company
to
the Underwriter prior to the Time of Sale.
(vi) The Company agrees to file with the Commission the
following:
(a) Any Free Writing Prospectus or portion thereof
delivered by the Underwriter to the Company pursuant to
Article IV(B)(ii); and
(b) Any Free Writing Prospectus for which the Company
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 Company or
any other offering participant that is in the business of
publishing, radio or television broadcasting or otherwise
disseminating communications.
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(vii) Any Free Writing Prospectus required to be filed
pursuant to Article IV(B)(v) by the Company 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 Securities shall be filed by the
Company with the Commission within two days of the later of
the date such final terms have been established for all
classes of Securities 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 Company
with
the Commission not later than the later of the due date
for filing the final Prospectus relating to the Securities
pursuant to Rule 424(b) of the Securities Act Regulations
and two Business Days after the first use of such Free
Writing Prospectus;
(c) Any Free Writing Prospectus required to be filed
pursuant to Article IV(B)(v)(b) shall, if no payment has
been made or consideration has been given by or on behalf of
the Company for the Free Writing Prospectus or its
dissemination, be filed by the Company with the Commission
not later than four Business Days after the Company becomes
aware of the publication, radio or television broadcast or
other dissemination of the Free Writing Prospectus; and
(d) The Company shall not be required to file (1)
Issuer
Information contained in any Free Writing Prospectus
of an Underwriter or any other offering participant other
than the Company, 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 Securities or (2) any Free Writing
Prospectus or portion thereof that contains a description of
the Securities or the offering of the Securities which does
not reflect the final terms thereof.
(viii) The 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 the 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.
(ix) Notwithstanding the provisions of Article IV(B)(vii),
the 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 Company 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
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consideration given by or on behalf of the Company 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.
(x) Notwithstanding the provisions of Articles IV(B)(v) and
IV(B)(vii), neither the Company 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.
(xi) The Company and each Underwriter each agree that any
Free Writing Prospectuses prepared by it shall contain the
following legend:
"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 issuing entity 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."
(xii) The Company 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 Article IV for a period
of
three years following the initial bona fide offering of the
Securities.
(a) In the event that any Underwriter becomes aware
that, as of the Time of Sale, any Free Writing Prospectus
prepared by or on behalf of such Underwriter and delivered
to such investor contained any untrue statement of a
material fact or, when read in conjunction with the other
information included in the Disclosure Package, omitted to
state a material fact necessary i
