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 2007-15AR (the “Issuing Entity”), Mortgage
Pass-Through Certificates, Series 2007-15AR 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 I-B-4, Class I-B-5, Class I-B-6, Class II-B-4, Class II-B-5, Class
II-B-6, Class P-1 and Class P-2 Certificates (the “Private
Securities”), will be issued pursuant to a pooling and servicing
agreement dated as of November 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, 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 adjustable-rate mortgage loans (the
“Mortgage Loans”), secured by first liens on one- to
four-family residential properties. The Mortgage Loans may be sold to the
Depositor pursuant to various mortgage loan purchase agreements (such
agreements, the “Mortgage Loan Purchase Agreements”
and the “Servicing Agreements,” respectively) between
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) 94% 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 of the Time of Sale,
any
Free Writing Prospectus prepared by or on behalf of such Underwriter and
delivered to such investor contained any untrue statement of a material fact
or,
when read in conjunction with the other information included in the Disclosure
Package, omitted to state a material fact necessary in order to make the
statements contained therein, in the light of the circumstances under which
they
were made, not misleading (such Free Writing Prospectus, a
“Defective Free Writing Prospectus”), such Underwriter
shall notify the Company thereof within one Business Day after
discovery.
(b) Provided
that the Defective Free Writing Prospectus was an Issuer Free Writing Prospectus
or contained Issuer Information, such Underwriter shall, if requested by
the
Company:
Prepare
a
Free Writing Prospectus with Corrective Information that corrects the material
misstatement in or omission from the Defective Free Writing Prospectus (such
corrected Free Writing Prospectus, a “Corrected Free Writing
Prospectus”);
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; provided if the Time of Sale has occurred with respect to
such
investor, the Underwriter shall provide such investor with (w) adequate
disclosure of the contractual arrangement, (x) adequate disclosure of the
person’s rights under the existing Contract of Sale at the time termination is
sought, (y) adequate discloser of the new information that is necessary to
correct the misstatements or omissions in the information given at the time
of
the original Contract of Sale, and (z) a meaningful ability to elect to
terminate or not terminate the prior Contract of Sale and to elect to enter
into
or not enter into a new Contract of Sale; and
In
the
event that the Defective Free Writing Prospectus contained Issuer Information,
and the Underwriter shall in good faith incur any costs to any investor in
connection with the reformation of the Contract of Sale with the investor,
the
Company agrees to reimburse the Underwriter for such costs; provided that,
before incurring such costs, the Underwriter first permit the Company access
to
the applicable investor and an opportunity to attempt to mitigate such costs
through direct negotiation with such investor.
The
Underwriter covenants with the Company that after the final Prospectus is
available such Underwriter shall not distribute any written information
concerning the Securities to a prospective investor unless such information
is
preceded or accompanied by the final Prospectus.
The
Underwriter covenants and agrees with the Company that it shall not accept
any
offer to purchase Securities until the time at least 24 hours after the time
the
related offeree received the Preliminary Prospectus, or such shorter period
as
such Underwriter and the Company shall agree.
IV.
Payment
for the Securities shall be made by certified or official bank check or checks
payable to the order of the Company in immediately available funds at the
office
of
Morgan
Stanley & Co. Incorporated 1585 Broadway, New York, New
York 10036, at 10:00 A.M., local time, on November 30, 2007, or at
such other time or place on the same or such other date, not later than five
Business Days after the date of this Agreement. Payment for the
Securities shall be made upon delivery to the Underwriter of the Securities
registered in such names and in such denominations as the Underwriter shall
request in writing not less than two full Business Days prior to the date
of
delivery. The time and date of such payment and delivery with respect
to the Securities are referred to in this Agreement as the “Closing
Date.”
V.
The
obligations of the Underwriter under this Agreement are subject to the following
conditions:
A. Subsequent
to the execution and delivery of this Agreement and prior to the Closing
Date:
(i) there
shall not have occurred any downgrading, nor shall any notice have been given
of
any intended or potential downgrading, or any review for a possible change,
that
does not indicate the direction of the possible change, in the rating accorded
any of the Company’s securities by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2) under the
Securities Act;
(ii) there
shall not have occurred any change, or any development involving a prospective
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, that in the judgment of the Underwriter, is
material and adverse and that makes it, in the judgment of the Underwriter,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus;
(iii) the
Underwriter shall have received on the Closing Date a certificate, dated
the
Closing Date and signed by an executive officer of the Company, to the effect
set forth in clause (i) above and to the effect that (x) the representations
and
warranties of the Company contained in this Agreement are true and correct
as of
the Closing Date and that the Company has complied with all of the agreements
and satisfied all of the conditions on its part to be performed or satisfied
on
or before the Closing Date and (y) no stop order suspending the effectiveness
of
the Registration Statement has been issued and no proceedings for that purpose
have been instituted or, to the Depositor’s knowledge,
threatened. The officer signing and delivering such certificate may
rely upon the best of his knowledge as to proceedings threatened;
and
(v) The
Underwriter shall have received on the Closing Date a certificate or opinion
of
counsel of each Seller and/or Servicer, as applicable, the Trustee, the Master
Servicer and the Securities Administrator signed by the president or a vice
president of the respective Seller and/or Servicer, as
applicable,
the Trustee, the Master Servicer and the Securities Administrator and dated
the
Closing Date, to the effect that (i) the representations and warranties of
the
Sellers, Servicers, the Trustee, the Master Servicer or the Securities
Administrator, as applicable, in this Agreement, the Pooling and Servicing
Agreement, the related Mortgage Loan Purchase Agreement , the related Servicing
Agreement or related Assignment Agreement, as applicable, are true and correct
in all material respects at and as of the Closing Date with the same effect
as
if made on the Closing Date, (ii) the respective Seller and/or Servicer,
as
applicable, the Trustee, the Master Servicer and the Securities Administrator
has complied with all the agreements and satisfied all the conditions on
its
part to be performed or satisfied at or prior to the Closing Date and (iii)
with
respect to the Seller’s Information related to the respective Seller, the
Servicer’s Information related to the respective Servicer, the Trustee’s
information related to the Trustee or the Master Servicer and Securities
Administrator information related to the Master Servicer and Securities
Administrator, as applicable, nothing has come to the attention of the signer
that would lead to the signer to believe that the Prospectus Supplement contains
any untrue statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not
misleading. “Seller’s Information” refers
to sections in the Prospectus Supplement entitled “Description of the
Mortgage Loans—Loan Purchasing Guidelines and Underwriting Standards,”
“Servicer’s Information” refers to sections in the
Prospectus Supplement entitled “The Servicers—GMAC Mortgage, LLC,”
“Trustee’s Information” refers to sections in the
Prospectus Supplement entitled “The Trustee” and “Master Servicer’s
and Securities Administrator’s Information” refers to
sections in the Prospectus Supplement entitled “The Master Servicer and
Securities Administrator.”
B. The
Underwriter shall have received on the Closing Date an opinion of counsel
for
the Company, dated the Closing Date, to the effect set forth in Exhibit
A.
C. The
Underwriter shall have received on the Closing Date an opinion of counsel
to the
Underwriter in form and substance acceptable to it.
D. The
Underwriter shall have received on the Closing Date a letter of KPMG, LLP,
dated
the date of this Agreement in form and substance satisfactory to the
Underwriter, regarding certain specified procedures performed thereby with
respect to information set forth in the Prospectus.
(vi) The
Underwriter shall have received from each of Moody’s Investors Services, Inc.
and Standard & Poor’s, a division of The McGraw-Hill Companies,
Inc. letters confirming the ratings set forth in the Prospectus Supplement,
which ratings shall not have been withdrawn.
(vii) The
Underwriter shall have received from counsel for the Trustee a favorable
opinion, dated the Closing Date, in form and substance satisfactory to the
Underwriter
and its counsel, to the effect that the Pooling and Servicing Agreement has
been
duly authorized, executed and delivered to the Trustee and constitutes legal,
valid, binding and enforceable agreements of the Trustee, subject, as to
enforceability, to bankruptcy, insolvency, reorganization, moratorium or
other
similar laws affecting creditors’ rights in general and by general principles of
equity regardless of whether enforcement is considered in a proceeding in
equity
or at law, and as to such other matters as may be agreed upon by the Underwriter
and the Trustee.
(viii) The
Underwriter shall have received from counsel for the Master Servicer and
the
Securities Administrator a favorable opinion, dated the Closing Date, in
form
and substance satisfactory to the Underwriter and its counsel, to the effect
that the Pooling and Servicing Agreement has been duly authorized, executed
and
delivered to the Master Servicer and the Securities Administrator and
constitutes legal, valid, binding and enforceable agreements of the Master
Servicer and the Securities Administrator, subject, as to enforceability,
to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors’ rights in general and by general principles of equity
regardless of whether enforcement is considered in a proceeding in equity
or at
law, and as to such other matters as may be agreed upon by the Underwriter
and
the Master Servicer and the Securities Administrator.
(ix) Except
as agreed to by the Underwriter, the Underwriter shall have received from
counsel to each Seller and/or Servicer, as applicable, a favorable opinion,
dated the Closing Date, in form and substance satisfactory to the Underwriter
and its counsel, to the effect that each Mortgage Loan Purchase Agreement
or
Servicing Agreement and Assignment Agreement has been duly authorized, executed
and delivered by each Seller and/or Servicer, as applicable, and constitute
legal, valid, binding and enforceable agreements of each Seller and/or Servicer,
as applicable, subject, as to enforceability, to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors’ rights in
general and by general principles of equity regardless of whether enforcement
is
considered in a proceeding in equity or at law, and as to such other matters
as
may be agreed upon by the Underwriter and the Sellers and/or Servicers, as
applicable.
VI.
In
further consideration of the agreements of the Underwriter contained in this
Agreement, the Company covenants as follows:
A. To
furnish the Underwriter, without charge, a signed copy of the Registration
Statement and any amendments thereto, including exhibits, and, during the
period
mentioned in paragraph C. below, as many copies of the Prospectus and any
supplements and amendments thereto as the Underwriter may reasonably
request.
B. Before
amending or supplementing the Registration Statement or the Prospectus with
respect to the Securities, to furnish the Underwriter a copy of each such
proposed amendment or supplement and not to file any such proposed amendment
or
supplement to which the Underwriter reasonably objects.
C. If,
during such period after the first date of the public offering of the
Securities, as in the opinion of counsel for the Underwriter the Prospectus
is
required by law to be delivered in connection with sales by the Underwriter,
any
event shall occur or condition exist as a result of which it is necessary
to
amend or supplement the Prospectus in order to make the statements therein,
in
the light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if it is necessary to amend or supplement the Prospectus
to
comply with law, forthwith to prepare and furnish, at its own expense, to
the
Underwriter, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
be
misleading or so that the Prospectus will comply with law.
D. To
endeavor to qualify the Securities for offer and sale under the securities
or
Blue Sky laws of such jurisdictions as the Underwriter shall reasonably request
and to pay all expenses (including fees and disbursements of counsel) in
connection with such qualification and in connection with the determination
of
the eligibility of the Securities for investment under the laws of such
jurisdictions as the Underwriter may designate.
VII.
The
Company agrees to indemnify and hold harmless the Underwriter and each person,
if any, who controls the Underwriter within the meaning of either Section
15 of
the Securities Act or Section 20 of the Exchange Act, from and against any
and
all losses, claims, damages and liabilities caused by any untrue statement
or
alleged untrue statement of a material fact contained in the Registration
Statement, any Free Writing Prospectus or the Prospectus (if used within
the
period set forth in paragraph C. of Article VIII and as amended or supplemented
if the Company shall have furnished any amendments or supplements thereto),
or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not
misleading, except insofar as such losses, claims, damages or liabilities
are
caused by any such untrue statement or omission or alleged untrue statement
or
omission based upon and in conformity with information furnished in writing
to
the Company by the Underwriter expressly for use or incorporation
therein.
The
Underwriter agrees to indemnify and hold harmless the Company and its directors
and officers who sign the Registration Statement and any person controlling
the
Company within the meaning of either Section 15 of the Securities Act or
Section
20 of the Exchange Act, to the same extent as the foregoing indemnity from
the
Company to the Underwriter, but only with reference to information relating
to
the Underwriter furnished in writing by the Underwriter expressly for use
or
incorporation in the Registration Statement, any Free Writing Prospectus
or the
Prospectus.
In
case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant
to
either of the two preceding paragraphs, such person (the
“indemnified party”) shall promptly notify the person
against whom such indemnity may be sought (the “indemnifying
party”) in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably
satisfactory
to the indemnified party to represent the indemnified party and any others
the
indemnifying party may designate in such proceeding and shall pay the fees
and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense
of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii)
the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation
of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party, in connection with any proceeding or related proceedings
in
the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and that all such fees and expenses shall be reimbursed as they are
incurred. Such firm shall be designated in writing by the Underwriter
in the case of parties indemnified pursuant to the first paragraph of this
Article VIII and by the Company in the case of parties indemnified pursuant
to
the second paragraph of this Article VIII. The indemnifying party
shall not be liable for any settlement of any proceeding effected without
its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at
any time an indemnified party shall have requested an indemnifying party
to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the third sentence of this paragraph, the indemnifying party agrees that
it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days
after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity
could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
To
the
extent the indemnification provided for in this Article VIII is unavailable
to
an indemnified party under the first or second paragraph of this Article
VIII or
is insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party, in lieu of indemnifying
such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand, and the Underwriter on the other, from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above
but
also the relative fault of the Company on the one hand, and of the Underwriter
on the other, in connection with
the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand, and the Underwriter on the other, in connection with the offering
of
the Securities shall be deemed to be in the same proportions that the total
net
proceeds from the offering of the Securities (before deducting expenses)
received by the Company and the total
underwriting
discounts and commissions received by the Underwriter in respect thereof
respectively, bear to the aggregate public offering price of the
Securities. The relative fault of the Company on the one hand, and of
the Underwriter on the other, shall be determined by reference to, among
other
things, whether the untrue or alleged untrue statement of a material fact
or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriter and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The
Company and the Underwriter agree that it would not be just and equitable
if
contribution pursuant to this Article VIII were determined by pro rata
allocation or by any other method of allocation that does not take account
of
the considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred
by
such indemnified party in connection with investigating or defending any
such
action or claim. Notwithstanding the provisions of this Article VIII,
the Underwriter shall not be required to contribute any amount in excess
of the
amount by which the total underwriting discounts and commissions received
by the
Underwriter in connection with the Securities underwritten and distributed
to
the public by the Underwriter exceeds the amount of any damages that the
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the Securities Act) shall be entitled to contribution from any person who
was
not guilty of such fraudulent misrepresentation.
The
indemnity and contribution agreements contained in this Article VIII and
the
representations and warranties of the Company in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination
of this
Agreement, (ii) any investigation made by or on behalf of the Underwriter
or any
person controlling the Underwriter or by or on behalf of the Company, its
directors or officers or any person controlling the Company and (iii) acceptance
of any payment for any of the Securities.
(x)
This
Agreement shall be subject to termination in the Underwriter’s absolute
discretion, by notice given to the Company, if (a) after the execution and
delivery of this Agreement and prior to the Closing Date: (i) trading generally
shall have been suspended or materially limited on or by, as the case may
be,
any of the New York Stock Exchange, the American Stock Exchange, the National
Association of Securities Dealers, Inc., the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii) trading
of
any securities of the Company shall have been suspended on any exchange or
in
any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York
shall have been declared by either Federal or New York State authorities,
or
(iv) there shall have occurred any outbreak or escalation of hostilities
or any
change in financial markets or any calamity or crisis that, in the judgment
of
the Underwriter, is material and adverse and (b) in the case of any of the
events specified in clauses (a)(i) through (iv), such event singly or together
with any other such event, makes it, in the judgment of the Underwriter,
impracticable to market the Securities on the terms and in the manner
contemplated in the Prospectus.
VIII.
The
Company acknowledges that in connection with the offering of the
Securities: (a) the Underwriter has acted at arms length, is not an
agent of, and owes no fiduciary duty to, the Company or any other person,
(b)
the Underwriter owes the Company only those duties and obligations set forth
in
this Agreement and (c) the Underwriter may have interests that differ from
those
of the Company. The Company waives to the full extent permitted by applicable
law any claims it may have against the Underwriter arising from an alleged
breach of fiduciary duty in connection with the offering of the
Securities.
IX.
In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a “Relevant Member
State”), the Underwriter has represented and agreed that 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 Securities 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 Securities to the public in
that
Relevant Member State at any time:
(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
€43,000,000 and (3) an annual net turnover of more than €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 issuer
of a
prospectus pursuant to Article 3 of the Prospectus Directive.
For
the
purposes of this provision, 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.
X.
This
Agreement, together with any contemporaneous written agreements and any prior
written agreements (to the extent not superseded by this Agreement) that
relate
to the
offering
of the Securities, represents the entire agreement between the Company, on
the
one hand, and the Underwriter, on the other, with respect to the preparation
of
the Prospectus, and the conduct of the offering, and the purchase and sale
of
the Securities.
XI.
If
this
Agreement shall be terminated by the Underwriter because of any failure or
refusal on the part of the Company to comply with the terms or to fulfill
any of
the conditions of this Agreement, or if for any reason the Company shall
be
unable to perform its obligations under this Agreement, the Company will
reimburse the Underwriter for all out-of-pocket expenses (including the fees
and
disbursements of its counsel) reasonably incurred by the Underwriter in
connection with the Securities.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument.
This
Agreement shall be governed by and construed in accordance with the laws
of the
State of New York.
| |
Very
truly yours,
|
|
| |
|
|
| |
|
|
| |
MORGAN
STANLEY CAPITAL I INC. |
|
| |
|
|
|
| |
|
|
|
|
|
By:
|
/s/
Valerie
Kay |
|
| |
|
Name
Valerie
Kay |
|
| |
|
Title
Vice President |
|
| |
|
|
|
Accepted
and agreed to by:
MORGAN
STANLEY & CO. INCORPORATED,
| |
|
|
|
By:
|
/s/
Valerie Kay |
|
| |
Name:
Valerie Kay |
|
SCHEDULE
A
|
Class
|
Principal
Amount ($)
|
Maturity
Date
|
Interest
Rate (%)
|
|
|
$15,939,000
|
November
2037
|
Variable
(1)
|
|
Class
1-A-2
|
$2,277,000
|
November
2037
|
Variable
(1)
|
|
Class
1-A-3
|
$13,662,000
|
November
2037
|
Variable
(1)
|
|
Class
1-A-4
|
$2,277,000
|
November
2037
|
Variable
(1)
|
|
Class
1-A-5
|
$15,939,000
|
November
2037
|
Variable
(1)
|
|
Class
1-A-6
|
Notional
(2)
|
November
2037
|
Variable
(1)
|
|
Class
2-A-1
|
$255,078,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-2
|
$42,513,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-3
|
$42,513,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-4
|
$31,885,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-5
|
$85,026,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-6
|
$74,398,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-7
|
$116,911,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-8
|
$297,591,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-9
|
$340,104,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-10
|
$42,513,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-11
|
Notional
(2)
|
November
2037
|
Variable
(1)
|
|
Class
2-A-12
|
$85,026,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-13
|
Notional
(2)
|
November
2037
|
Variable
(1)
|
|
Class
2-A-14
|
$255,078,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-15
|
Notional
(2)
|
November
2037
|
Variable
(1)
|
|
Class
2-A-16
|
$297,591,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-17
|
Notional
(2)
|
November
2037
|
Variable
(1)
|
|
Class
2-A-18
|
$340,104,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-19
|
Notional
(2)
|
November
2037
|
Variable
(1)
|
|
Class
2-A-20
|
$42,513,000
|
November
2037
|
Variable
(1)
|
|
Class
2-A-21
|
Notional
(2)
|
November
2037
|
Variable
(1)
|
|
Class
3-A-1
|
$47,667,000
|
November
2037
|
Variable
(1)
|
|
Class
3-A-2
|
$6,810,000
|
November
2037
|
Variable
(1)
|
|
Class
3-A-3
|
$40,857,000
|
November
2037
|
Variable
(1)
|
|
Class
3-A-4
|
$6,810,000
|
November
2037
|
Variable
(1)
|
|
Class
3-A-5
|
$47,667,000
|
November
2037
|
Variable
(1)
|
|
Class
3-A-6
|
Notional
(2)
|
November
2037
|
Variable
(1)
|
|
Class
4-A-1
|
$37,555,000
|
November
2037
|
Variable
(1)
|
|
Class
4-A-2
|
$5,365,000
|
November
2037
|
Variable
(1)
|
|
Class
4-A-3
|
$32,190,000
|
November
2037
|
Variable
(1)
|
|
Class
4-A-4
|
$5,365,000
|
November
2037
|
Variable
(1)
|
|
Class
4-A-5
|
$37,555,000
|
November
2037
|
Variable
(1)
|
|
Class
4-A-6
|
Notional
(2)
|
November
2037
|
Variable
(1)
|
|
Class
4-A-7
|
$37,555,000
|
November
2037
|
Variable
(1)
|
|
Class
4-A-8
|
Notional
(2)
|
November
2037
|
Variable
(1)
|
|
Class
5-A-1
|
$103,646,000
|
December
2037
|
Variable
(1)
|
|
Class
5-A-2
|
$13,800,000
|
December
2037
|
Variable
(1)
|
|
Class
5-A-3
|
$89,846,000
|
December
2037
|
Variable
(1)
|
|
Class
5-A-4
|
$13,800,000
|
December
2037
|
Variable
(1)
|
|
Class
5-A-5
|
$79,850,000
|
December
2037
|
Variable
(1)
|
|
Class
5-A-6
|
$23,796,000
|
December
2037
|
Variable
(1)
|
|
Class
5-A-7
|
$66,542,000
|
December
2037
|
Variable
(1)
|
|
Class
5-A-8
|
$37,104,000
|
December
2037
|
Variable
(1)
|
|
Class
6-A-1
|
$14,447,000
|
December
2037
|
Variable
(1)
|
|
Class
6-A-2
|
$1,924,000
|
December
2037
|
Variable
(1)
|
|
Class
6-A-3
|
$12,523,000
|
December
2037
|
Variable
(1)
|
|
Class
6-A-4
|
$1,924,000
|
December
2037
|
Variable
(1)
|
|
Class
6-A-5
|
$11,130,000
|
December
2037
|
Variable
(1)
|
|
Class
6-A-6
|
$3,317,000
|
December
2037
|
Variable
(1)
|
|
I-B-1
|
$26,470,000
|
November
2037
|
Variable
(1)
|
|
I-B-2
|
$13,653,000
|
November
2037
|
Variable
(1)
|
|
I-B-3
|
$5,851,000
|
November
2037
|
Variable
(1)
|
|
II-B-1
|
$8,113,000
|
November
2037
|
Variable
(1)
|
|
II-B-2
|
$3,184,000
|
November
2037
|
Variable
(1)
|
|
II-B-3
|
$1,289,000
|
November
2037
|
Variable
(1)
|
|
A-R
|
$100
|
November
2037
|
Variable
(1)
|
(1) Please
refer to pages iv through x of the Prospectus Supplement for a description
of
the pass-through rate for each Class of Certificates.
(2) Please
refer to pages iv through x of the Prospectus Supplement for a description
of
the principal amount for each Class of Notional Amount
Certificates.
