without any governing agreement. Furthermore, the September OC provides that “a contract of sale will come into being no sooner than the date on which the relevant class has been priced and the Initial Purchasers have confirmed the allocation of Securities to be made to such prospective investor” (at v). This provision implies that a contract came into being at least by the time of closing, if not earlier. The contract can be loosely described as an agreement to invest in the CDO identified in the marketing materials; its precise terms must be determined through an analysis of the marketing materials, oral statements, and the established course of dealing as it was understood when the commitment was made. See Lowenstein v. Lombard, Ayres & Co., 164 N.Y. 324, 333, 58 N.E. 44 (1900) (<HOLDING>). Plaintiff performed its obligation to
holding that enforcement of alleged oral representations made prior to execution of written contract was barred by the parol evidence rule and the explicit integration clause holding that there was no evidence that parties actually agreed to modify stock purchase agreement and thus contract was effective as originally written holding rule 16 does not apply to oral statements other than statements of the defendant holding that when the courts oral statements in the plea colloquy conflict with the written agreement the courts oral statements control holding that as a matter of evidence juries may properly consider prior oral and written statements for the purpose of defining the contract that was actually made