MORGAN STANLEY CAPITAL I INC.

trustee (in such capacity, the “Trustee”), Wells Fargo Bank, National Association, as certificate administrator (in such capacity, the “Certificate Administrator”), authenticating agent (in such capacity, the “Authenticating Agent”) and custodian (in such capacity, the “Custodian”), and Park Bridge Lender Services LLC, as trust advisor (the “Trust Advisor,” and together with the Master Servicer, the Special Servicer, the Trustee, the Certificate Administrator, the Authenticating Agent and the Custodian, the “Transaction Parties,” and each, a “Transaction Party”).  The Offered Certificates of each class will be issued in the minimum denominations and will have the terms set forth in the Prospectus Supplement.  The Mortgage Loans will be sold to the Depositor pursuant to (i) a Mortgage Loan Purchase Agreement, dated the date hereof (the “BofA MLPA”), between Bank of America, National Association (“BofA”) and the Depositor, (ii) a Mortgage Loan Purchase Agreement, dated the date hereof (the “CIBC MLPA”), between CIBC Inc. (“CIBC”) and the Depositor, and (iii) a Mortgage Loan Purchase Agreement, dated the date hereof (the “MSMCH MLPA” and, collectively with the BofA MLPA and the CIBC MLPA, the “MLPAs”), between Morgan Stanley Mortgage Capital Holdings LLC (“MSMCH” and, collectively with BofA and CIBC, the “Mortgage Loan Sellers”) and the Depositor.

                               (i)         The Depositor has filed with the Securities and Exchange Commission (the “Commission”) a registration statement (No. 333-180779) on Form S-3 for the registration of the Offered Certificates under the Securities Act of 1933 (the “1933 Act”), which registration statement was effective as of the Time of Sale, is effective as of the date hereof and will be effective as of any Subsequent Time of Sale and as of the Closing Date.  The Depositor proposes to file with the Commission pursuant to Rule 424(b) under the 1933 Act a supplement, dated January 30, 2014, to the prospectus, dated October 1, 2013, included in such registration statement relating to the Offered Certificates and the plan of distribution thereof and has previously advised you of all further information (financial and other) with respect to the Offered Certificates set forth therein.  Such registration statement, including the exhibits thereto, any information incorporated therein by reference and all information that is contained in the Prospectus (as defined below), as it may have been amended or supplemented at the date of the Prospectus Supplement (as defined below), is hereinafter referred to as the “Registration Statement”; the prospectus 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, is hereinafter referred to as the “Base Prospectus”; the supplement to the Base Prospectus relating to the Offered 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.”  The conditions to the use of a registration statement on Form S-3 under the 1933 Act, as set forth in the General Instructions to Form S-3, and the conditions of Rule 415(a)(1) under the Securities Act have been satisfied with respect to

the Registration Statement.  In accordance with Rule 172(c) of the 1933 Act, the Depositor shall make a good faith and reasonable effort to file the Prospectus, in the form that satisfies Section 10(a) of the 1933 Act, within the time required under Rule 424 under the 1933 Act and, in the event that the Depositor fails to timely file the Prospectus, the Depositor shall file the Prospectus as soon as practicable thereafter.

                              (ii)        At or prior to the time when sales to purchasers of the Offered Certificates were first made in accordance with Rule 159 of the 1933 Act, which was (a) approximately 12:30 p.m. (Eastern Time) on January 30, 2014 with respect to all of the Offered Certificates (other than the Class X-A  Certificates) and (b) approximately 2:30 p.m. (Eastern Time) on January 30, 2014 with respect to the Class X-A Certificates (collectively, the “Time of Sale”), the Depositor had prepared and filed with the Commission the following information (collectively, the “Time of Sale Information”):  (i) a “free writing prospectus,” as defined in Rule 405 under the 1933 Act (a “Free Writing Prospectus”), prepared by or on behalf of the Depositor, dated January 23, 2014 (the “Transaction FWP”), the cover page of which is attached hereto as Annex A; (ii) the Base Prospectus; (iii) the Free Writing Prospectus designated as a Structural and Collateral Term Sheet, dated January 23, 2014 (the “Structural and Collateral Term Sheet FWP”), relating to the Offered Certificates, the first page of which is attached hereto as Annex B-1; (iv) the Free Writing Prospectus, filed with the Commission on January 23, 2014, under accession number 0001539497-14-000057 (the “Appendix I FWP”); and (v) the Free Writing Prospectus, dated January 29, 2014, containing a Collateral Updates section, a Structural Updates section and a General section on the Use of Proceeds and Plan of Distribution (Conflicts of Interest) (the “Pre-Pricing FWP”), relating to the Offered Certificates, the first page of which is attached hereto as Annex B-2 (each of the Structural and Collateral Term Sheet FWP, the Appendix I FWP and the Pre-Pricing FWP are referred to herein as an “Additional FWP” and, collectively, as the “Additional FWPs”).  The Time of Sale Information was delivered to investors in the Offered Certificates prior to the Time of Sale.  If, subsequent to the date of this Agreement, the Depositor or the Underwriters determine that, as to investors in one or more Classes of the Offered Certificates, the Time of Sale Information as of the Time of Sale 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 the Underwriters terminate their old purchase contracts and enter into new purchase contracts with investors in such Classes of the Offered Certificates, then “Time of Sale Information” shall also refer to the additional information conveyed to investors at the time of entry into such new purchase contract (each, a “Subsequent Time of Sale”), including any information that corrects such material misstatements or omissions (“Corrective Information”) and “Time of Sale” will refer to the time and date on which such new purchase contracts were entered into.

                             (iii)         As of the date hereof, as of the date the Registration Statement became effective or was deemed effective pursuant to Rule 430B under the 1933 Act, as of the Time of Sale (including any Subsequent Time of Sale), as of the date the Prospectus Supplement is first filed pursuant to Rule 424 under the 1933 Act, as of the date when, prior to the Closing Date, any amendment to the Registration Statement becomes effective or any supplement to the Prospectus Supplement is filed with the

Commission, and as of the Closing Date, (i) the Registration Statement, as amended as of any such time, and the Prospectus, as amended or supplemented as of any such time, complied, complies and will comply in all material respects with the applicable requirements of the 1933 Act and the rules and regulations thereunder, and (ii) the Registration Statement, as amended as of any such time, did not, does not and will not contain any untrue statement of a material fact and did not, does not and will not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus, as amended or supplemented as of any such time, did not, does not and will not contain an untrue statement of a material fact and did not, does not and will not omit to state a material fact required to be stated therein or necessary in order to make the statements 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 Underwriter Information (as defined below) 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, (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 the date hereof, between the respective Mortgage Loan Seller, the Depositor and the Underwriters (such information, the “Mortgage Loan Seller Information”), or (C) any information regarding a Transaction Party contained in or omitted from the portions of the Prospectus Supplement for which such Transaction Party is obligated to indemnify the Underwriters under a separate related indemnification agreement, each dated the date hereof, entered into between such party, the Depositor and the Underwriters (such information, the “Transaction Party Information”).  The parties hereto acknowledge and agree that the “Underwriter Information” shall consist of:  (x) with respect to the Pre-Pricing FWP, the second, fourth, fifteenth, sixteenth and seventeenth paragraphs and the first and second sentences of the fifth paragraph under the heading “Plan of Distribution (Conflicts of Interest)” in the Pre-Pricing FWP; and (y) with respect to the Prospectus Supplement, the second, fourth, fifteenth, sixteenth and seventeenth paragraphs and the first and second sentences of the fifth paragraph of the section of the Prospectus Supplement entitled “PLAN OF DISTRIBUTION (CONFLICTS OF INTEREST)” and the first sentence of the last paragraph on the cover page of the Prospectus Supplement.  Any Issuer Information (as defined below) provided by the Depositor to any Underwriter, as of the date that such Issuer Information was so provided for inclusion in an Underwriter Free Writing Prospectus (as defined below), did not, as of the date that such Issuer Information was so provided, and does not, as of the date of this Agreement, contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that the Depositor shall not be in breach of this representation if the Depositor provided Issuer Information to the Underwriters, correcting such untrue statement or omission of a material fact contained in previously delivered Issuer Information, so long as the Depositor delivered the corrected information to the Underwriter a reasonable period time prior to the date hereof.

                             (iv)        The Time of Sale Information, at the Time of Sale (including any Time of Sale Information existing at any Subsequent Time of Sale, if any, at such Subsequent 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, (B) any Mortgage Loan Seller Information contained in or omitted from such Time of Sale Information or (C) any Transaction Party 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 (other than, with respect to the Pre-Pricing FWP, the information set forth in clause (x) of the definition of “Underwriter Information”).

                              (v)       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 Offered 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 Prospectus, (iii) the Time of Sale Information, and (iv) 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 (iii) and this clause (iv) 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 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 conveyed to the subject investor) 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, or include any information that conflicted or conflicts with the information contained in the Registration Statement; 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, (ii) any Mortgage Loan Seller Information contained in or omitted from any Issuer Free Writing Prospectus or (iii) any Transaction Party 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 (other than, with respect to the Pre-Pricing FWP, the information set forth in clause (x) of the definition of “Underwriter Information”).  The Depositor acknowledges that the Transaction FWP and the Additional FWPs are the only Issuer Free Writing Prospectuses (as defined below) prepared by or on behalf of the Depositor as of the date hereof.

                             (vi)         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 full power and authority to own its properties and conduct its business, as described in the Prospectus, and to enter into and perform its obligations under this Agreement, the MLPAs and the PSA, and is conducting its business so as to comply in all material respects with all applicable statutes, ordinances, rules and regulations of the jurisdictions in which it is conducting business.

                            (vii)         There are no actions or proceedings against, or investigations of, the Depositor pending, or, to the knowledge of the Depositor, threatened, before any court, administrative agency or other tribunal (i) asserting the invalidity of this Agreement, the PSA, any MLPA or the Certificates, (ii) seeking to prevent the issuance of the Offered Certificates or the consummation of any of the transactions contemplated by this Agreement, any MLPA or the PSA, (iii) which might materially and adversely affect the performance by the Depositor of its obligations under, or the validity or enforceability of, this Agreement, any MLPA, the PSA or the Certificates or (iv) seeking to affect adversely the federal income tax attributes of the Offered Certificates described in the Prospectus.

                           (viii)         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 Depositor has not received and is not aware of any request by the Commission for any further amendment of the Registration Statement or the Prospectus or for any additional information or any notification with respect to the suspension of the qualification of the Offered Certificates for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

                             (ix)         The issuance and sale of the Certificates, the execution, delivery and performance of this Agreement, the PSA and the MLPAs 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 or any of its subsidiaries 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, the MLPAs or the PSA, or any statute, order, decree, rule or regulation applicable to the Depositor or any of its subsidiaries of any court, regulatory body, administrative agency or governmental body having jurisdiction over the Depositor or any of its subsidiaries.  Neither the Depositor nor any of its subsidiaries is a party to, bound by or in breach or violation of any indenture or other agreement or instrument, or subject to or in violation of any statute, order, decree, rule or regulation of any court,

 

 

regulatory body, administrative agency or governmental body having jurisdiction over it, which materially and adversely affects the ability of the Depositor to enter into or perform its obligations under this Agreement, any MLPA or the PSA.

                              (x)         The Offered Certificates have been duly and validly authorized by the Depositor for issuance and sale (or will have been so authorized prior to the issuance thereof) pursuant to this Agreement and the PSA.  When issued, authenticated and delivered by the Certificate Administrator pursuant to the provisions of this Agreement and of the PSA against payment of the consideration therefor by the Underwriters in accordance with this Agreement, the Offered Certificates will be duly and validly issued and outstanding and entitled to the benefits provided by the PSA, 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 Offered Certificates, the PSA, the MLPAs and the other transaction documents conform in all material respects to all statements relating thereto contained in each of (A) the Prospectus, (B) the Time of Sale Information and (C) any Issuer Information (as may have been revised and corrected if such revised or corrected information was delivered a reasonable time prior to the Time of Sale) delivered to any Underwriter for inclusion in an Underwriter Free Writing Prospectus.

                             (xi)         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 Offered 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 Offered Certificates by the Underwriters and any recordation of the respective assignments of the Mortgage Loans to the Trustee pursuant to the PSA that have not yet been completed.

                            (xii)        This Agreement and each MLPA have been, and, as of the Closing Date, the PSA will be, duly authorized, executed and delivered by the Depositor.  This Agreement and the MLPAs constitute, and as of the Closing Date the PSA 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.

                           (xiii)          As of the Closing Date, the representations and warranties of the Depositor set forth in the PSA and any MLPA will be true and correct.

                           (xiv)         There are no contracts, indentures or other documents of a character required by the 1933 Act or by the rules and regulations thereunder to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement that have not been so described or referred to therein or so filed or incorporated by reference as exhibits thereto.

                            (xv)         Immediately prior to the assignment of the Mortgage Loans to the Trustee, the Depositor will have good title to, and will be the sole owner of, each Mortgage Loan free and clear of any pledge, mortgage, lien, security interest, adverse claim or other encumbrance of any other person.  At the time of the execution and delivery of the PSA, 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 PSA or, except for the Underwriters, the Offered 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 Offered Certificates to the Underwriters.  Upon execution and delivery of the PSA 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 Offered Certificates pursuant hereto, each Underwriter will have good title to the Offered Certificates purchased by such Underwriter, in each case free of Liens granted by or imposed upon the Depositor.

                           (xvi)         The Depositor is not, and the issuance and sale of the Offered 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”); and the PSA is not required to be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).

                          (xvii)         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 Offered 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 Offered Certificates to the Underwriters will constitute at least reasonably equivalent value and fair consideration for the Offered Certificates.  The Depositor will be solvent at all relevant times prior to, and will not be rendered insolvent by, the sale of the Offered Certificates to the Underwriters.  The Depositor is not selling the Offered Certificates to the Underwriters with any intent to hinder, delay or defraud any of the creditors of the Depositor.

                         (xviii)         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 Offered 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 Offered 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.

                            (xix)        The Trust Fund (other than those portions specified in the PSA) will qualify as three separate real estate mortgage investment conduits (each, a “REMIC”) for federal income tax purposes pursuant to Section 860D of the Internal Revenue Code of 1986, as amended (the “Code”); the REMIC III Regular Certificates and the EC REMIC III Regular Interests will constitute “regular interests” in a REMIC; and the Class R Certificates will constitute the sole class of “residual interests” in each of REMIC I, REMIC II and REMIC III.  The Grantor Trust will be treated as a grantor trust under Subpart E of Part I of Subchapter J of the Code and Treasury Regulations Section ###-###-####-4(c)(1), and the Exchangeable Certificates and the Class V Certificates will represent ownership interests in the assets of the Grantor Trust.

                            (xx)         There are no legal or governmental actions or proceedings or investigations 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.

                           (xxi)         The Depositor possesses all material licenses, certificates, authorizations and/or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct the business now operated by it, and the Depositor has not received any notice of proceedings relating to the revocation or modification of any such license, certificate, authorization or permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would materially and adversely affect the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Depositor.

                          (xxii)          At the Closing Date, the respective classes of Offered Certificates listed on Schedule I hereto shall have been assigned ratings by the Rating Agencies (as defined in the PSA) no less than those set forth in the Time of Sale Information and such ratings shall not have been withdrawn, suspended or qualified.

                          (xxiii)         Any taxes, fees and other governmental charges in connection with the execution, delivery and issuance of this Agreement, the PSA, the MLPAs and the Offered Certificates payable by the Depositor (other than income taxes) have been paid or will be paid at or prior to the Closing Date.

                         (xxiv)         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.

                           (xxv)        The Depositor is not, and on the date on which the first bona fide offer of the Offered 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.

                         (xxvi)        The Depositor has executed and delivered a written representation to each Rating Agency (other than any Rating Agency to which MSMCH has executed and delivered a written representation as set forth in Section 1(b)(iv) hereof) that it will take the actions specified in paragraphs (a)(3)(iii)(A) through (D) of Rule 17g-5 of the 1934 Act (“Rule 17g-5”), and the Depositor has complied, and will hereafter comply, with such representation, other than any breach of such representation (a) that would not have a material adverse effect on the Offered Certificates or (b) arising from a breach by any of the Underwriters of a representation, warranty and agreement set forth in this Agreement.

                        (xxvii)         The statements set forth in each of the Transaction FWP and the Prospectus Supplement under the heading “MATERIAL FEDERAL INCOME TAX CONSEQUENCES” insofar as they purport to describe matters of law or legal conclusions with respect thereto, are correct in all material respects.

                               (i)        It has been duly organized and is a validly existing limited liability company in good standing under the laws of the State of New York with limited liability company power and authority to enter into and perform its obligations under this Agreement;

                             (ii)        This Agreement has been duly authorized, executed and delivered by MSMCH.  This Agreement constitutes a legal, valid and binding agreement enforceable against MSMCH in accordance with its terms, except as such enforceability may be limited by the effect of (i) bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws affecting the enforcement of the rights of creditors generally, (ii) general principles of equity, whether enforcement is sought in a proceeding in equity or at law, and (iii) 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;

                             (iii)        The execution, delivery and performance of this Agreement by MSMCH and the consummation of the transactions contemplated herein by MSMCH and

compliance by MSMCH with its obligations hereunder have been duly authorized by all necessary limited liability company action and will not (i) contravene any provision of the certificate of formation or operating agreement of MSMCH or applicable law or (ii) 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 MSMCH pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which MSMCH is a party or by which it may be bound or to which any of the property or assets of MSMCH is subject, which conflict, breach, default, lien, charge or encumbrance is reasonably likely to materially and adversely affect MSMCH’s ability to perform its obligations under this Agreement;

Loans, the transactions contemplated by this Agreement or the PSA or any other information, that could be reasonably determined to be relevant to undertaking credit rating surveillance for the Certificates (as contemplated by Rule 17g-5(a)(iii)(3)(D)), without the prior consent of MSMCH.

 

prospective investors Free Writing Prospectuses, 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)):

statements contained therein (when read in conjunction with the Time of Sale Information), in the 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, Mortgage Loan Seller Information or Transaction Party Information), which information was not corrected by Corrective Information subsequently supplied by the Depositor or the related Mortgage Loan Seller to such Underwriter within a reasonable period of time prior to the Time of Sale.

rule.  Subject to Section 4, the Depositor will cause the Issuer Free Writing Prospectus to be transmitted for filing pursuant to Rule 433 under the 1933 Act by means reasonably calculated to result in filing with the Commission pursuant to said rule.

Underwriters, including any transfer or other taxes payable thereon, (viii) the upfront costs and charges of any custodian, transfer agent, registrar or depository (to the extent not otherwise payable under the PSA, and except to the extent that another party is obligated to pay such amounts pursuant to an agreement executed in connection with the issuance of the Certificates), (ix) the fees and expenses of the rating agencies incurred in connection with the issuance and sale of the Offered Certificates; and (x) all other costs and expenses incident to the performance of the obligations of the Depositor hereunder for which provision is not otherwise made in this Section.  It is understood, however, that except as provided in Section 7 or as otherwise agreed to by the parties, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel.

Writing Prospectus required to be filed by the Depositor pursuant to Section 4 shall have been filed or transmitted for filing by means reasonably calculated to result in a filing with the Commission pursuant to Rule 424(b) under the 1933 Act or Rule 433 under the 1933 Act, as applicable.

Offered Certificates, so as to make it impractical or inadvisable to proceed with the public offering or the delivery of the Offered Certificates as contemplated by the Time of Sale Information (excluding the Corrective Information) and the Prospectus, or (y) the ability of the Depositor to perform its obligations under this Agreement, any MLPA or the PSA.

Free Writing Prospectus that is required to be filed pursuant to Section 4(v)(C), Section 4(v)(D) or Section 4(viii) hereof (the items described in clauses (x) and (y) collectively, the “Issuer Disclosure Materials”), or the omission or alleged omission to state a material fact necessary to make the statements therein (when read in conjunction with the other Time of Sale Information and any Draft PSA conveyed to the subject investor), in the light of the circumstances under which they were made, not misleading, which untrue statement or omission referred to above in this clause (iii) was not corrected by Corrective Information subsequently supplied by the Depositor or any Mortgage Loan Seller to any Underwriter within a reasonable period of time prior to the Time of Sale (but not less than one (1) Business Day so that a Corrected Free Writing Prospectus could have been provided (electronically or otherwise)), or

Information, Mortgage Loan Seller Information or Transaction Party Information, which was not corrected by Corrective Information subsequently supplied by the Depositor or the applicable Mortgage Loan Seller to any Underwriter within a reasonable period of time prior to the Time of Sale, or (B) information that is also contained in the Time of Sale Information, or (C) any errors in the mathematical calculations reflected in such Free Writing Prospectus to the extent such errors arise out of or are based upon errors in such Issuer Information, Mortgage Loan Seller Information or Transaction Party Information. This indemnity agreement will be in addition to any liability that any Underwriter may otherwise have.

subsection (a), (b) or (c) of this Section 7.  Upon request of the indemnified party, the indemnifying 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 as incurred.  If any action is brought against any indemnified party and it notifies the indemnifying party of the commencement thereof, the indemnifying party may participate at its own expense in the defense of any such action.  The indemnifying party may elect to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from the indemnified party.  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 agreed to the retention of such counsel, (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, (iii) the indemnified party shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the indemnifying party, or (iv) the indemnifying party shall have failed to designate within a reasonable period of time counsel reasonably satisfactory to the indemnified party (in which case the fees and expenses shall be paid as incurred by the indemnifying party). In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, and all such fees and expenses shall be reimbursed as they are incurred.  An indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, which consent shall not be unreasonably withheld.  However, if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party shall 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 for which the indemnifying party is obligated under this subsection, 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.  If an indemnifying party assumes the defense of any proceeding, it shall be entitled to settle such proceeding with the consent of the indemnified party or, if such settlement provides for an unconditional release of the indemnified party, in form and substance satisfactory to such indemnified party, and without any admission of fault, culpability or failure to act or on behalf of the indemnified party, from all liability on claims that are the subject matter of such proceeding, without the consent of the indemnified party.

contribution, each such indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the Liabilities referred to in such subsection (a), (b) or (c) above in such proportion as is appropriate to reflect (i) the relative benefits received by the indemnifying party or parties on the one hand and the indemnified party or parties on the other from the offering of the Offered Certificates or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only such relative benefits but also the relative fault of the indemnifying party or parties on the one hand and the indemnified party or parties on the other in connection with the untrue statements or omissions or alleged untrue statements or omissions that resulted in such Liabilities, as well as any other relevant equitable considerations.  The relative benefits received by the Depositor on the one hand and an Underwriter on the other shall be deemed to be in the same proportion as the total proceeds from the issuance and sale of the Offered Certificates under this Agreement (before deducting expenses) received by the Depositor bear to the total underwriting discounts, commissions or other fees received by such Underwriter. The relative benefits received by an Underwriter on the one hand and another Underwriter on the other shall be deemed to be in the same proportion as the total underwriting discounts, commissions or other fees received by the first such Underwriter bear to the total underwriting discounts, commissions or other fees received by the other such Underwriter.  The relative fault of the parties 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 indemnifying party on the one hand, or the indemnified party on the other, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission or alleged statement or omission.

 

more than one-tenth of the aggregate principal amount of Offered Certificates to be purchased on such date and arrangements satisfactory to the non-defaulting Underwriters and the Depositor for the purchase of such Offered Certificates are not made within 36 hours after such default, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter or of the Depositor.  In any such case any such non-defaulting Underwriter or the Depositor shall have the right to postpone the Closing Date, but in no event for longer than seven days, in order that the required changes, if any, in the Prospectus or in any other documents or arrangements may be effected. As used in this Agreement, the term “Underwriter” includes any person substituted for an Underwriter under this Section.  Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.

 

the Offered Certificates on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus.