EXECUTION VERSION
MORGAN STANLEY CAPITAL I INC.
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES,
SERIES 2007-TOP27
UNDERWRITING AGREEMENT
July 19, 2007
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
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 Bear, Stearns & Co. Inc. (together, the
"Underwriters"), the
Commercial Mortgage Pass-Through Certificates identified in
Schedule I hereto
(the "Certificates") pursuant to this Underwriting Agreement, dated
July 19,
2007 (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, manufactured
housing
community and commercial mortgage loans (the "Mortgage Loans").
Certain of the Mortgage Loans (the "BSCMI Mortgage Loans")
will be
acquired by the Depositor from Bear Stearns Commercial Mortgage,
Inc. ("BSCMI")
pursuant to the mortgage loan purchase agreement, dated July 19,
2007 (the
"BSCMI Mortgage Loan Purchase Agreement") between the Depositor and
BSCMI.
Certain of the Mortgage Loans (the "MSMCH Mortgage Loans") will be
acquired by
the Depositor from Morgan Stanley Mortgage Capital Holdings LLC
("MSMCH")
pursuant to the mortgage loan purchase agreement, dated July 19,
2007 (the
"MSMCH Mortgage Loan Purchase Agreement") between the Depositor and
MSMCH.
Certain of the Mortgage Loans (the "PCF II Mortgage Loans") will be
acquired by
the Depositor from Principal Commercial Funding II, LLC ("PCF II")
pursuant to
the mortgage loan purchase agreement, dated July 19, 2007 (the "PCF
II Mortgage
Loan Purchase Agreement"), between the Depositor and PCF II.
Certain of the
Mortgage Loans (the "WFB Mortgage Loans") will be acquired by the
Depositor from
Wells Fargo Bank, National Association ("WFB") pursuant to the
mortgage loan
purchase agreement, dated July 19, 2007 (the "WFB Mortgage Loan
Purchase
Agreement") between the Depositor and WFB. BSCMI,
MSMCH, PCF II and WFB collectively constitute the "Mortgage Loan
Sellers"; and
the BSCMI Mortgage Loan Purchase Agreement, the MSMCH Mortgage Loan
Purchase
Agreement, the PCF II Mortgage Loan Purchase Agreement and the WFB
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 July 1, 2007 (the
"Pooling and
Servicing Agreement"), between the Depositor, as depositor, WFB, as
master
servicer, Centerline Servicing Inc., as special servicer, LaSalle
Bank National
Association, as trustee and custodian (the "Trustee") and WFB, as
paying agent,
certificate registrar and authenticating agent (the "Paying
Agent").
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. 333-143623) 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 2:30 p.m. on July 19, 2007 (the
"Time of
Sale"), the Depositor had prepared the following information
(collectively, the
"Time of Sale Information"): the Depositor's Free Writing
Prospectus dated July
2, 2007 (the cover page of which is attached hereto as Annex A) to
accompany the
Depositor's Prospectus dated June 22, 2007, the Depositor's
Prospectus dated
June 22, 2007, the Term Sheet dated July 2, 2007, 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
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misstatements or omissions ("Corrective Information") and "Time of
Sale" will
refer to the time and date on which such new purchase contracts
were entered
into.
1. Representations and Warranties.
(a) The Depositor represents and warrants to the
Underwriters as
follows:
(i) The Registration Statement has become
effective; no stop
order suspending the effectiveness of the Registration Statement is
in effect,
and no proceedings for such purpose are pending or, to the
Depositor's
knowledge, threatened by the Commission; the Registration Statement
as of its
effective date or deemed effective date pursuant to Rule 430B under
the 1933 Act
(the "Effective Date"), and the Prospectus, as of the date of the
Prospectus
Supplement, complied in all material respects with the applicable
requirements
of the 1933 Act and the rules and regulations thereunder (the "1933
Act
Regulations"); and the information in the Registration Statement,
as of the
Effective Date, did not contain any untrue statement of a material
fact and did
not omit to state any material fact required to be stated therein
or necessary
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 July 19, 2007, 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 second, fourth and ninth paragraphs of the
section of the
Prospectus Supplement entitled "Plan of Distribution" and the first
two
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.
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(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.
(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
4
provisions of this Agreement and of the Pooling and Servicing
Agreement against
payment of the consideration therefor in accordance with this
Agreement, the
Certificates will be duly and validly issued and outstanding and
entitled to the
benefits provided by the Pooling and Servicing Agreement, except as
the
enforceability thereof may be limited by the effect of (A)
bankruptcy,
insolvency, reorganization, receivership, moratorium or other
similar laws
affecting the enforcement of the rights of creditors generally, and
(B) general
principles of equity, whether enforcement is sought in a proceeding
in equity or
at law. The Certificates and the Pooling and Servicing Agreement
conform in all
material respects to all statements relating thereto contained in
the
Prospectus.
(vii) No authorization, approval or consent of any
court or
governmental authority or agency is necessary in connection with
the offering,
issuance or sale of the Certificates hereunder, except such as have
been, or as
of the Closing Date will have been, obtained or such as may
otherwise be
required under applicable state securities laws in connection with
the purchase
and offer and sale of the Certificates by the Underwriters and any
recordation
of the respective assignments of the Mortgage Loans to the Trustee
pursuant to
the Pooling and Servicing Agreement that have not yet been
completed.
(viii) This Agreement and each Mortgage Loan Purchase
Agreement
have been, and as of the Closing Date the Pooling and Servicing
Agreement will
be, duly authorized, executed and delivered by the Depositor. This
Agreement and
the Mortgage Loan Purchase Agreements constitute, 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.
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(x) The Depositor is not, and the issuance and sale
of the
Certificates in the manner contemplated by the Prospectus will not
cause the
Depositor or the Trust Fund to be, subject to registration or
regulation as an
"investment company" under the Investment Company Act of 1940, as
amended (the
"1940 Act").
(xi) Under generally accepted accounting principles
("GAAP") and
for federal income tax purposes, the Depositor will report the
transfer of the
Mortgage Loans to the Trustee in exchange for the Certificates and
the sale of
the Certificates to the Underwriters pursuant to this Agreement as
a sale of the
interest in the Mortgage Loans evidenced by the Certificates. The
consideration
received by the Depositor upon the sale of the Certificates to the
Underwriters
will constitute at least reasonably equivalent value and fair
consideration for
the Certificates. The Depositor will be solvent at all relevant
times prior to,
and will not be rendered insolvent by, the sale of the Certificates
to the
Underwriters. The Depositor is not selling the Certificates to the
Underwriters
with any intent to hinder, delay or defraud any of the creditors of
the
Depositor.
(xii) The Depositor has not relied on the
Underwriters for any
tax, regulatory, accounting or other advice with respect to
compliance with or
registration under any statute, rule or regulation of any
governmental,
regulatory, administrative or other agency or authority. The
Depositor
acknowledges and agrees that (i) the terms of this Agreement and
the offering
(including the price of the Certificates) were negotiated at arm's
length
between sophisticated parties represented by counsel; (ii) no
fiduciary,
advisory or agency relationship between the Depositor and the
Underwriters has
been created as a result of any of the transactions contemplated by
this
Agreement, irrespective of whether any Underwriter has advised or
is advising
the Depositor on other matters; (iii) the Underwriters' obligations
to the
Depositor in respect of the offering, and the purchase and sale, of
the
Certificates are set forth in this Agreement in their entirety; and
(iv) it has
obtained such legal, tax, accounting and other advice as it deems
appropriate
with respect to this Agreement and the transactions contemplated
hereby 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 four separate real
estate
mortgage investment conduits (each, a "REMIC") for federal income
tax purposes
pursuant to Section 860D of the Internal Revenue Code of 1986, as
amended (the
"Code"); the Class A-MFL Regular Interest and the REMIC Regular
Certificates (as
defined in the Pooling and Servicing Agreement) other than the
portion of the
Class P Certificates representing the right to receive Excess
Interest as set
forth in the Pooling and Servicing Agreement, will constitute
"regular
interests" in a REMIC; the Class R-I Certificates will represent
the sole class
of "residual interests" in each of REMIC I and the Class AW34
REMIC; the Class
R-II Certificates will constitute the sole class of "residual
interests" in
REMIC II; and the Class R-III Certificates will constitute the sole
class of
"residual interests" in REMIC III. Portions of the Trust Fund
consisting of the
Class A-MFL Regular Interest, the related Swap Contract and the
Class A-MFL
Floating Rate Account will qualify as a grantor trust for federal
income tax
purposes under the Code and the Class A-MFL Certificates will
represent pro rata
beneficial interests in such grantor trust. Portions of the Trust
Fund
consisting of the right to receive Excess Interest on ARD Loans and
the Excess
Interest Sub-account will also qualify as a grantor trust for
federal income tax
purposes under the Code and
6
the Class P Certificates will represent pro rata undivided
beneficial interests
in such grantor trust.
(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, the Mortgage Loan Purchase Agreements and the
Certificates
payable by the Depositor (other than income taxes) have been paid
or will be
paid at or prior to the Closing Date.
(xvii) None of the Depositor or any of its affiliates
does business
with the government of Cuba or with any person or affiliate located
in Cuba
within the meaning of Section 517.075, Florida Statutes.
(xviii) The Depositor is not, and on the date on which
the first
bona fide offer of the Certificates is made (within the meaning of
Rule
164(h)(2) under the 1933 Act) will not be, an "ineligible issuer,"
as defined in
Rule 405 under the 1933 Act.
(b) Each Underwriter, severally and not jointly,
represents,
warrants and agrees that:
(i) as of the date hereof and as of the Closing
Date, such
Underwriter has complied with all of its obligations hereunder; and
(ii) in relation to each Member State of the
European Economic
Area which has implemented the Prospectus Directive (as defined
below) (each, a
"Relevant Member State"), with effect from and including the date
on which the
Prospectus Directive is implemented in that Relevant Member State
(the "Relevant
Implementation Date"), it has not made and will not make an offer
of
Certificates to the public in that Relevant Member State prior to
the
publication of a prospectus in relation to the Certificates which
has been
approved by the competent authority in that Relevant Member State
or, where
appropriate, approved in another Relevant Member State and notified
to the
competent authority in that Relevant Member State, all in
accordance with the
Prospectus Directive, except that it may, with effect from and
including the
Relevant Implementation Date, make an offer of Certificates to the
public in
that Relevant Member State at any time:
7
(A) to legal entities which are authorized
or regulated
to operate in the financial markets or, if not so authorized
or regulated,
whose corporate purpose is solely to invest in securities;
(B) to any legal entity which has two or
more of (1) an
average of at least 250 employees during the last financial
year; (2) a
total balance sheet of more than (euro)43,000,000 and (3) an
annual net
turnover of more than (euro)50,000,000, as shown in its last
annual or
consolidated accounts; or
(C) in any other circumstances which do not
require the
publication by the Depositor of a prospectus pursuant to
Article 3 of the
Prospectus Directive.
For the purposes of this paragraph (b)(ii), the expression an
"offer of
Certificates to the public" in relation to any Certificates in any
Relevant
Member State means the communication in any form and by any means
of sufficient
information on the terms of the offer and the Certificates to be
offered so as
to enable an investor to decide to purchase or subscribe the
Certificates, as
the same may be varied in that Member State by any measure
implementing the
Prospectus Directive in that Member State and the expression
"Prospectus
Directive" means Directive 2003/71/EC and includes any relevant
implementing
measure in each Relevant Member State;
(iii) (A) it has only communicated or caused to
be
communicated and will only communicate or cause to be
communicated an
invitation or inducement to engage in investment activity
(within the
meaning of Section 21 of the Financial Services and Markets
Act 2000
("FSMA")) received by it in connection with the issue or sale
of the
certificates in circumstances in which Section 21(1) of the
FSMA does not
apply to the Depositor; and
(B) 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.
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 July 1, 2007 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 July
30, 2007,
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
8
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
Latham &
Watkins LLP, 885 Third Avenue, New York, New York 10022, or at such
other place
as shall be agreed upon by the Underwriters and the Depositor.
4. Offering by Underwriters; Free Writing Prospectuses.
(a) It is understood that the Underwriters propose to
offer the
Certificates for sale as set forth in the Prospectus. It is further
understood
that the Depositor, in reliance upon Policy Statement 105, has not
and will not
file an offering statement pursuant to Section 352-e of the General
Business Law
of the State of New York with respect to the Certificates. Each
Underwriter
severally and not jointly therefore agrees that sales of the
Certificates made
by such Underwriter in and from the State of New York will be made
only to
institutional investors within the meaning of Policy Statement 105.
(b) In connection with the offering of the
Certificates, the
Underwriters may each prepare and provide to prospective investors
Free Writing
Prospectuses (as defined below), or portions thereof, subject to
the following
conditions (to which such conditions each Underwriter agrees
(provided that no
Underwriter shall be responsible for any breach of the following
conditions by
any other Underwriter)):
(i) Unless preceded or accompanied by the
Prospectus, the
Underwriters shall not convey or deliver any written
communication to any
person in connection with the initial offering of the
Certificates, unless
such written communication (1) is made in reliance on Rule
134 under the
1933 Act, (2) constitutes a prospectus satisfying the
requirements of Rule
430B under the 1933 Act, or (3) constitutes Time of Sale
Information or a
Free Writing Prospectus that does not constitute Time of Sale
Information.
The Underwriters shall not convey or deliver in connection
with the
initial offering of the Certificates any "computational
materials" or "ABS
term sheets" in reliance on the "Kidder/PSA" no-action
letters or any "ABS
informational and computational material," as defined in Item
1101(a) of
Regulation AB under the 1933 Act ("ABS Informational and
Computational
Material"), in reliance upon Rules 167 and 426 under the 1933
Act.
(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
9
Loan Seller Information), and (b) any Free Writing Prospectus
or portion
thereof prepared by or on behalf of such Underwriter that
contains only a
description of the final terms of the Certificates.
Notwithstanding the
foregoing, any Free Writing Prospectus that contains only ABS
Informational and Computational Materials may be delivered by
an
Underwriter to the Depositor not later than the later of (A)
two business
days prior to the due date for filing of the Prospectus
pursuant to Rule
424(b) under the 1933 Act or such later date as may be agreed
to by the
Depositor or (B) the date of first use of such Free Writing
Prospectus.
(iii) Each Underwriter represents and warrants
to the
Depositor that the Free Writing Prospectuses to be furnished
to the
Depositor by such Underwriter pursuant to Section 4(b)(ii)
will constitute
all Free Writing Prospectuses of the type described therein
that were
furnished to prospective investors by such Underwriter in
connection with
its offer and sale of the Certificates.
(iv) Each Underwriter represents and warrants
to the
Depositor that each Free Writing Prospectus required to be
provided by it
to the Depositor pursuant to Section 4(b)(ii) did not, as of
the Time of
Sale, and will not as of the Closing Date, include any untrue
statement of
a material fact or omit any material fact necessary to make
the statements
contained therein (when read in conjunction with the Time of
Sale
Information), in light of the circumstances under which they
were made,
not misleading; provided however, that such Underwriter makes
no
representation to the extent such misstatements or omissions
were the
result of any inaccurate Issuer Information, which
information was not
corrected by Corrective Information subsequently supplied by
the Depositor
or any Mortgage Loan Seller to such Underwriter within a
reasonable period
of time prior to the Time of Sale.
(v) The Depositor agrees to file with the
Commission the
following:
(A) Any Issuer Free Writing Prospectus;
(B) Any Free Writing Prospectus or
portion thereof
delivered by any Underwriter to the Depositor pursuant
to Section
4(b)(ii); and
(C) Any Free Writing Prospectus for
which the
Depositor or any person acting on its behalf provided,
authorized or
approved information that is prepared and published or
disseminated
by a person unaffiliated with the Depositor or any
other offering
participant that is in the business of publishing,
radio or
television broadcasting or otherwise disseminating
communications.
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
10
that contains a description of the Certificates or the
offering of
the Certificates which does not reflect the final terms
thereof.
The Depositor is required to file such Free Writing
Prospectuses
with the Commission in electronic format and the
Underwriters shall
use reasonable efforts to provide to the Depositor such
Free Writing
Prospectuses, or portions thereof, in either Microsoft
Word(R) or
Microsoft Excel(R) format and not in a PDF, except to
the extent
that the Depositor, in its sole discretion, waives such
requirements,
(vi) Any Free Writing Prospectus required to
be filed
pursuant to Section 4(b)(v) by the Depositor shall be filed
with the
Commission not later than the date of first use of the Free
Writing
Prospectus, except that:
(A) Any Free Writing Prospectus or
portion thereof
required to be filed that contains only the description
of the final
terms of the Certificates shall be filed by the
Depositor with the
Commission within two days of the later of the date
such final terms
have been established for all classes of Certificates
and the date
of first use;
(B) Any Free Writing Prospectus or
portion thereof
required to be filed that contains only ABS
Informational and
Computational Material shall be filed by the Depositor
with the
Commission not later than the later of the due date for
filing the
final Prospectus relating to the Certificates pursuant
to Rule
424(b) under the 1933 Act or two business days after
the first use
of such Free Writing Prospectus; and
(C) Any Free Writing Prospectus
required to be filed
pursuant to Section 4(b)(v)(C) shall, if no payment has
been made or
consideration has been given by or on behalf of the
Depositor for
the Free Writing Prospectus or its dissemination, be
filed by the
Depositor with the Commission not later than four
business days
after the Depositor becomes aware of the publication,
radio or
television broadcast or other dissemination of the Free
Writing
Prospectus.
(vii) Each Underwriter shall file with the
Commission any
Free Writing Prospectus that is used or referred to by it and
distributed
by or on behalf of such Underwriter in a manner reasonably
designed to
lead to its broad, unrestricted dissemination not later than
the date of
the first use of such Free Writing Prospectus.
(viii) Notwithstanding the provisions of Section
4(b)(vii),
each Underwriter shall file with the Commission any Free
Writing
Prospectus for which such Underwriter or any person acting on
its behalf
provided, authorized or approved 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
11
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
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