Exhibit 1.1
Underwriting Agreement
<PAGE>
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2006-IQ12
UNDERWRITING AGREEMENT
December 14, 2006
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York
10036
LaSalle Financial Services, Inc.
55 East 52nd Street
New York, NY 10055
Greenwich Capital Markets, Inc
600 Steamboat Road
Greenwich, Connecticut 06830-7168
Merrill Lynch, Pierce, Fenner & Smith Incorporated
4 World Financial Center, North Tower
New York, New York 10281-1315
SunTrust Capital Markets, Inc.
303 Peachtree Street
Atlanta, Georgia
30308
Ladies and Gentlemen:
Morgan Stanley Capital I Inc., a Delaware corporation (the
"Depositor"), proposes to sell to Morgan Stanley & Co.
Incorporated, LaSalle
Financial Services, Inc., Greenwich Capital Markets, Inc., Merrill
Lynch,
Pierce, Fenner & Smith Incorporated (except with respect to the
Class A-4
Certificates) and SunTrust Capital Markets, Inc. (together, the
"Underwriters")
the Commercial Mortgage Pass-Through Certificates identified in
Schedule I
hereto (the "Certificates") pursuant to this Underwriting
Agreement, dated
December 14, 2006 (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 pool (the "Mortgage Pool") of multifamily and
commercial mortgage
loans (the "Mortgage Loans").
Certain Mortgage Loans (the "MSMC Mortgage Loans") have been
acquired by the Depositor from Morgan Stanley Mortgage Capital Inc.
("MSMC")
pursuant to the mortgage loan purchase agreement, dated as of
December 1, 2006
(the "MSMC Mortgage Loan Purchase Agreement"), between the
Depositor and MSMC.
Certain Mortgage Loans (the "LaSalle Mortgage Loans") have been
acquired by the
Depositor from LaSalle Bank National Association ("LaSalle")
pursuant to the
mortgage loan purchase agreement, dated as of December 1, 2006 (the
"LaSalle
Mortgage Loan Purchase Agreement"), between the Depositor and
LaSalle. Certain
Mortgage Loans (the "Prudential Mortgage Loans") have been acquired
by the
Depositor from Prudential Mortgage Capital Funding, LLC
("Prudential") pursuant
to the mortgage loan purchase agreement, dated as of December 1,
2006 (the
"Prudential Mortgage Loan Purchase Agreement"), between the
Depositor and
Prudential. Certain Mortgage Loans (the "SunTrust Mortgage Loans")
have been
acquired by the Depositor from SunTrust Bank ("SunTrust") pursuant
to the
mortgage loan purchase agreement, dated as of December 1, 2006 (the
"SunTrust
Mortgage Loan Purchase Agreement"), between the Depositor and
SunTrust. Certain
Mortgage Loans (the "MM Mortgage Loans") have been acquired by the
Depositor
from Massachusetts Mutual Life Insurance Company ("MM") pursuant to
the mortgage
loan purchase agreement, dated as of December 1, 2006 (the "MM
Mortgage Loan
Purchase Agreement"), between the Depositor and MM.
MSMC, LaSalle, Prudential, SunTrust and MM collectively
constitute
the "Mortgage Loan Sellers"; and the MSMC Mortgage Loan Purchase
Agreement, the
LaSalle Mortgage Loan Purchase Agreement, the Prudential Mortgage
Loan Purchase
Agreement, the SunTrust Mortgage Loan Purchase Agreement and the MM
Mortgage
Loan Purchase Agreement collectively constitute the "Mortgage Loan
Purchase
Agreements." Capitalized terms used herein but not otherwise
defined herein
shall have the meanings set forth in the Mortgage Loan Purchase
Agreements or
the Pooling and Servicing Agreement (as defined herein), as
applicable.
The Depositor has filed with the Securities and Exchange
Commission
(the "Commission") a registration statement (No. 333-130684) 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
and copies
of which have heretofore been delivered to the Underwriters. 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, as amended
at the date
hereof, is hereinafter called the "Registration Statement"; the
prospectus
included in the Registration Statement, at the time the
Registration Statement,
as amended, became effective, or as subsequently filed with the
Commission
pursuant to Rule 424(b) under the 1933 Act, is hereinafter called
the "Base
Prospectus"; such form of supplement to the Base Prospectus
relating to the
Certificates, in the form in which it shall be first filed with the
Commission
pursuant to Rule 424 (including the Base Prospectus as so
supplemented) is
hereinafter called the "Prospectus Supplement"; and the Base
Prospectus and the
Prospectus Supplement, together, are hereinafter called the
"Prospectus."
At or prior to the time when sales to purchasers of the
Certificates
were first made, which was approximately 2:50 p.m. on December 14,
2006 (the
"Time of Sale"), the Depositor had prepared the following
information
(collectively, the "Time of Sale Information"): (i) the Depositor's
Free Writing
Prospectus dated December 6, 2006 (the cover page of which is
attached hereto as
Annex A) to accompany the Depositor's Prospectus dated December 6,
2006, (ii)
the Term Sheet dated December 6, 2006, relating to the
Certificates, (iii) the
Supplemental Free Writing Prospectus dated December 14, 2006 and
(iv) the
pricing information annex attached hereto as Annex B. 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
the effective date thereof (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 Morgan Stanley & Co. Incorporated
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,
including,
without limitation, where applicable, any such information in
the
Prospectus
Supplement under the headings "Summary of Prospectus
Supplement,"
"Risk Factors"
and "Description of the Mortgage Pool," or contained in or
omitted from
Appendix I, Appendix II, Appendix III, Appendix IV or Appendix
V
to the
Prospectus Supplement (collectively, the "Mortgage Loan Seller
Information"),
under the Indemnification Agreements, each dated as of
December 14,
2006, between the respective Mortgage Loan Seller, the
Depositor
and the
Underwriters; 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 chart, second, fourth and last
paragraphs of
the section of the Prospectus Supplement entitled "Use of
Proceeds" and
the first three 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
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 (the
"Pooling and Servicing Agreement"), dated as of December 1,
2006, among the
Depositor, Capmark Finance Inc., as General Master Servicer,
Prudential Asset
Resources, Inc., as Prudential Master Servicer, ARCap
Servicing, Inc.,
as Special Servicer, Wells Fargo Bank, NA, as Trustee, and
LaSalle Bank
National Association, as Paying Agent and Certificate
Registrar.
(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 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, 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 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 being transferred to
the Trustee
pursuant to the Pooling and Servicing Agreement, 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 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 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 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) 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").
(xiii) 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.
(xiv) 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.
(xv) The trust fund created pursuant to the Pooling and
Servicing
Agreement (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 one REMIC; and the Class R-I, Class R-II and
Class
R-III Interests
will constitute the classes of "residual interests" in the
REMICs; and the
portion of the Trust Fund representing the Excess Interest
and the Excess
Interest Sub-account shall be treated as a grantor trust under
Subpart E of
Part 1 of Subchapter J of Chapter 1 of Subtitle A of the Code
and that the
Class EI Certificates (other than the portion thereof
consisting
of REMIC III
Regular Interests) shall represent undivided beneficial
interests in the
portion of the Trust Fund consisting of the entitlement to
receive Excess
Interest.
(xvi) 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 statutes, regulations, 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.
(xvii) 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.
(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
principal 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 the
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
December 21,
2006, 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 Cadwalader,
Wickersham &
Taft LLP, One World Financial Center, New York, New York 10281, or
at such other
place as shall be agreed upon by the Underwriters and the
Depositor.
4. Offering by Underwriters; Free Writing Prospectuses.
(a) The Underwriters shall provide the Underwriter Information
to
the Depositor expressly for use in the Prospectus.
(b) 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 a 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.
(c) 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,
severally and not
jointly, with respect to those Free Writing Prospectuses prepared
by such
Underwriter (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(c)(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(c)(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(c)(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(c)(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(c)(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(c)(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(c)(v) and
4(c)(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").
(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 contract of sale with such
investor, as described in Section IV.A.2.c of Commission's
Securities Offering Reform Release No. 33-8591.
(D) If the Defective Free Writing Prospectus was an
Issuer
Free Writing Prospectus, and the Underwriters shall in good
faith incur any costs to an investor in connection with the
reformation of the contract of sale with the investor, the
Depositor
agrees to reimburse the Underwriters for such costs; provided
that,
before incurring such costs, the Underwriters first permit the
Depositor access to the applicable investor and an opportunity
to
attempt to mitigate such costs through direct negotiation with
such
investor.
(xiii) Each Underwriter covenants with the Depositor that
after the Prospectus is available such Underwriter shall not
distribute any written information concerning the Certificates to
a
prospective investor unless such information is preceded or
accompanied by the Prospectus
(d) Each Underwriter shall have been deemed to have
represented,
warranted and agreed that:
(i) the
Certificates may not be offered or sold in or into the
United Kingdom except in circumstances which do not constitute
an
offer to the public in the United Kingdom within the meaning of
the
Public Offers of Securities Regulations 1995;
(ii) if not an authorized person under the Financial Services
and Markets Act 2000 (the "FSMA"), it has not and will not offer
or
sell any Certificates except to persons who (a) are outside the
United Kingdom, or (b) have professional experience in matters
relating to investments or (c) fall within article 49(2)(a)
through
(d) ("high net worth companies, unincorporated associations,
etc.")
of the Financial Services and Markets Act 2000 (Financial
Promotions) Order 2001;
(iii) if an authorized person under the FSMA, it has not and
will not offer or sell any Certificates except to persons who
(a)
are
outside the United Kingdom, or (b) have professional experience
in participating in unregulated collective investment schemes,
or
(c) fall within article 22(2)(a) through (d) ("high net worth
companies, unincorporated associations etc") of the Financial
Services and Markets Act 2000 (Promotion of Collective
Investment
Schemes) (Exemptions) Order 2001;
(iv) it has only communicated or caused to be communicated and
will only
communicate or cause to be communicated any invitation or
inducement to engage in investment activity (within the meaning
of
Section 21 of the FSMA) received by it in connection with the
issue
or sale of any Certificates in circumstances in which Section 21
(1)
of the FSMA does not apply to the Depositor; and
(v) it has complied and will comply with all applicable
provisions of the FSMA with respect to anything done by it in
relation to the Certificates in, from or otherwise involving
the
United Kingdom.
5. Covenants of the Depositor.
The Depositor covenants with each Underwriter as follows:
(a) The Depositor will give each of the Underwriters notice of
its
intention to prepare, use, authorize, approve, refer to or file any
Issuer Free
Writing Prospectus or to file or prepare (i) any amendment to the
Registration
Statement at any time prior to the Closing Date or (ii) any
amendment or
supplement to the Prospectus (including any revised prospectus that
the
Depositor proposes for use by the Underwriters in connection with
the offering
of the Certificates and that differs from the prospectus on file at
the
Commission at the time the Registration Statement became effective,
whether or
not such revised prospectus is required to be filed pursuant to
Rule 424(b) of
the 1933 Act Regulations) at any time during the period when a
prospectus
relating to the Certificates is required to be delivered under the
1933 Act, and
the Depositor will furnish the Underwriters with copies of any such
Issuer Free
Writing Prospectus, amendment or supplement a reasonable amount of
time prior to
such proposed filing or use, as the case may be, and will not
prepare, use,
authorize, approve, refer to or file any such Issuer Free Writing
Prospectus or
file any such amendment or supplement or use any such prospectus to
which the
Underwriters shall reasonably object.
(b) The Depositor will promptly give each Underwriter notice of
(i)
any request by the Commission for any amendment of the Registration
Statement or
the Prospectus or for any additional information relating to the
Certificates,
(ii) any written notification received by the Depositor of
suspension of
qualification of the Certificates for sale in any jurisdiction or
the initiation
or threatening of any proceeding for such purpose and (iii) the
issuance by the
Commission of any stop order suspending the effectiveness of the
Registration
Statement or the institution or, to the knowledge of the Depositor,
threatening
any proceeding for that purpose. The Depositor will use its best
efforts to
prevent the issuance of any such stop order and, if issued, to
obtain as soon as
possible the withdrawal thereof. In addition, the Depositor shall
correct any
circumstances described in (i) or (ii) above as of the Closing Date
to the
extent that any such circumstance would result in potential
liability of any
Underwriter in connection with the sale of any Certificate.
(c) The Depositor will cause the Prospectus to be transmitted to
the
Commission for filing pursuant to Rule 424(b) under the 1933 Act by
means
reasonably calculated to result in filing with the Commission
pursuant to said
rule. Subject to Section 4, the Depositor will cause the Issuer
Free Writing
Prospectus to be transmitted for filing pursuant to Rule 433 under
the 1933 Act
by means reasonably calculated to result in filing with the
Commission pursuant
to said rule.
(d) The Depositor will deliver to each Underwriter a copy of
the
Registration Statement as originally filed and of each amendment
thereto prior
to the date hereof (including exhibits filed therewith or
incorporated by
reference therein).
(e) The Depositor will furnish to each Underwriter, from time
to
time during the period when a prospectus relating to the
Certificates is
required to be delivered under the 1933 Act, such number of copies
of the
Prospectus and each Free Writing Prospectus (as amended or
supplemented) as such
Underwriter may reasonably request for the purposes contemplated by
the 1933 Act
or the Securities Exchange Act of 1934, as amended (the "1934 Act")
or the
respective applicable rules and regulations of the Commission
thereunder.
(f) If, during the period after the first date of the public
offering of the Certificates in which a prospectus relating to the
Certificates
is required to be delivered under the 1933 Act, any event shall
occur as a
result of which it is necessary to amend or supplement the
Prospectus in order
to make the Prospectus not misleading in the light of the
circumstances existing
at the time it is delivered to a purchaser of Certificates, if the
Depositor has
actual knowledge of the event, and if the event is not otherwise
disclosed in a
filing to the Registration Statement pursuant to Section 13 or
15(d) of the 1934
Act, the Depositor will forthwith amend or supplement the
Prospectus so that, as
so amended or supplemented, the Prospectus will not include an
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 existing
at the time
it is delivered to a purchaser, not misleading, and the Depositor
will furnish
to each Underwriter a reasonable number of copies of such amendment
or
supplement.
(g) The Depositor will endeavor to arrange for the qualification
of
the Certificates for sale under the applicable securities laws of
such states
and other jurisdictions of the United States as the Underwriters
may reasonably
designate and will maintain such qualification in effect so long as
required for
the initial distribution of Certificates; provided, however, that
the Depositor
shall not be obligated to qualify as a foreign corporation in any
jurisdiction
in which it is not so qualified or to file a general consent to
service of
process in any jurisdiction.
(h) The Depositor will use the net proceeds received by it from
the
sale of the Certificates in the manner specified in the Prospectus
under "Use of
Proceeds."
(i) Whether or not the transactions contemplated by this
Agreement
are consummated, the Depositor will pay or cause to be paid all
expenses
incident to the performance of the obligations of the Depositor
under this
Agreement, including, without limitation, (i) the fees,
disbursements and
expenses of the Depositor's counsel and accountants in connection
with the
purchase of the Mortgage Loans and the issuance and sale of the
Certificates,
(ii) all fees and expenses incurred in connection with the
registration and
delivery of the Certificates under the 1933 Act, and all other fees
or expenses
in connection with the preparation and filing of the Registration
Statement, the
Time of Sale Information, any Issuer Free Writing Prospectus, the
Prospectus and
amendments and supplements to any of the foregoing, including all
printing costs
associated therewith, and the mailing and delivering of copies
thereof to the
Underwriters and dealers, in the quantit
