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Exhibit
99.2
EXECUTION COPY
MORGAN
STANLEY CAPITAL I INC.
MORTGAGE
PASS-THROUGH CERTIFICATES
Series
2007-11AR
UNDERWRITING
AGREEMENT
New
York, New York
June
26, 2007
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 2007-11AR (the “
Issuing Entity ”), Mortgage
Pass-Through Certificates, Series 2007-11AR 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 B-4,
Class B-5, Class B-6, Class 1-L-IO, Class 2-L-IO and Class P
Certificates (the “ Private
Securities ”), will be issued pursuant to
a pooling and servicing agreement dated as of June 1, 2007
(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 Holdings LLC, successor by merger to Morgan Stanley
Mortgage Capital Inc., as seller (“
MSMCH ”), 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
adjustible-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 MSMCH and one or more sellers (the
“ Sellers ”), a mortgage
loan purchase agreement between MSMCH and the Depositor and
assignment, assumption and recognition agreements between the
Depositor, MSMCH, 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 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 Time of Sale
(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 Contracts of Sale (as
such term is used in Rule 159 of the Securities Act
Regulations and all Commission guidance relating to Rule 159)
and entered into new Contracts of Sale 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 Contract of Sale, including
any information that corrects such material misstatements or
omissions (“ Corrective
Information ”).
The
term “
Pool Information
” means with respect to any Free Writing
Prospectus, the information with respect to the
characteristics of the Mortgage Loans and administrative
and servicing fees, as provided by or on behalf of
MSCC or the Company to the Underwriter at the time most recent
to the date of such Free Writing Prospectus.
The
term “ Time of Sale ”
means the point of time at which a Contract of
Sale is entered into between the Underwriter and a
third party purchaser.
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 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.
(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.
(i)
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 ”).
(ii)
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.
(iii)
The
characteristics of the Issuing Entity will not subject the Issuing
Entity to registration as an “investment company” under
the Investment Company Act.
II.
MSMCH
represents and warrants to and agrees with the Underwriter
that:
(a)
MSMCH
has been duly formed, is validly existing as a limited liability
company in good standing under the laws of the State of New York,
has the company 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
MSMCH.
(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 MSMCH and is a valid and binding
agreement of MSMCH, 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 MSMCH 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
articles of organization or the operating agreement of MSMCH or any
agreement or other instrument binding upon MSMCH that is material
to MSMCH or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over MSMCH 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 MSMCH of its obligations under the Pooling and
Servicing Agreement, the Mortgage Loan Purchase Agreements and the
Assignment Agreements.
(iv)
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) 100.74% 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.
III.
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.
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® or Microsoft Excel® 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):
“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.
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.
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.
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.
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.
The
Company agrees to file with the Commission the
following:
1.
Any
Free Writing Prospectus or portion thereof delivered by the
Underwriter to the Company pursuant to Article IV(B)(ii);
and
2.
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.
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.
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.
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 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.
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.
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.”
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
o
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