MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. STARM MORTGAGE LOAN TRUST 2007-2 Mortgage Pass Through Certificates Series 2007-2 UNDERWRITING AGREEMENT
Exhibit
1.1
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
$725,190,000
Mortgage
Pass Through Certificates
Series
2007-2
March
[28], 2007
UBS
Securities LLC
0000
Xxxxxx xx xxx Xxxxxxxx
SunTrust
Capital Markets, Inc.
000
Xxxxxxxxx Xxxxxx
Atlanta,
Georgia 30309
Ladies
and Gentlemen:
Mortgage
Asset Securitization Transactions, Inc., a Delaware corporation (the
“Company”), proposes to sell to UBS Securities LLC (“UBS”) and
SunTrust Capital Markets, Inc. (“STCM” and, together with UBS, the
“Underwriters”), pursuant to this agreement (the “Agreement”), the
Company’s Mortgage Pass Through Certificates, Series 2007-2, Class 1-A-1, Class
1-A-2, Class 2-A-1, Class 2-A-2, Class 3-A-1, Class 3-A-2, Class 3-A-3, Class
3-A-4, Class 5-A-1, Class 5-A-2, Class B-1, Class B-2 and Class B-3 certificates
(the “Offered Certificates” and, together with the Class B-4, Class B-5
and Class B-6 certificates, the “Certificates”) issued pursuant to the
Pooling and Servicing Agreement, dated as of March 1, 2007 (the “Pooling and
Servicing Agreement”), among the Company, as depositor, UBS Real Estate
Securities Inc., (“UBSRES”), as transferor, Xxxxx Fargo Bank, N.A., as
master servicer (the “Master Servicer”) and as trust administrator (the
“Trust Administrator”), and U.S. Bank National Association, as trustee
(the “Trustee”) described herein. The Certificates will
represent in the aggregate the entire beneficial ownership interest in a trust
(the “Trust”) primarily consisting of a segregated pool (the “Mortgage
Pool”) of fixed rate residential mortgage loans (the “Mortgage
Loans”). Pursuant to the Mortgage Loan Purchase Agreement, dated
as of March 1, 2007 (the “SunTrust Mortgage Loan Purchase Agreement”),
between SunTrust Mortgage, Inc. (“SunTrust”) and UBSRES, the Mortgage
Loans will be purchased from SunTrust by UBSRES. Pursuant to the
Mortgage Loan Purchase Agreement, dated as of March 1, 2007 (the “MAST
Mortgage Loan Purchase Agreement”) between UBSRES and the Company, the
Mortgage Loans will be purchased from UBSRES by the Company. The
Offered Certificates are described more fully in Schedule A hereto and the
Registration Statement (as hereinafter defined). This is to confirm the
arrangements with respect to the Underwriters’ purchase of the Offered
Certificates.
The
Pooling and Servicing Agreement, the MAST Mortgage Loan Purchase Agreement,
the
Indemnification Agreements (as defined below) and this Agreement are
collectively referred to herein as the “Transaction
Documents”. Only the Offered Certificates are being sold pursuant
to this Agreement.
At
or
prior to the time when sales (including any contracts of sale) of the Offered
Certificates were first made to investors by the Underwriters (the “Time of
Sale”), the Company had prepared the following information (together, as a
whole, the “Time of Sale Information”): (i) the Term Sheet
Supplement, dated March 8, 2007 and the Prospectus, dated February 26, 2007
(together, along with any information referred to under the caption “Static Pool
Information” therein, regardless of whether it is deemed a part of the
Registration Statement or Prospectus under Rule 1105(d) of Regulation AB, the
“Term Sheet Supplement”), and (ii) each “free writing prospectus”
(as defined pursuant to Rule 405 of the Securities Act of 1933, as
amended (the
“Act”)) (as it may be amended with the approval in writing of the parties
hereto). If, subsequent to the Time of Sale and prior to the Closing
Date (as defined herein), it is determined by the parties that such information
included an untrue statement of material fact or omitted to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, then the investors
may
terminate their old “contracts of sale” (within the meaning of Rule 159 under
the Act). If, following any such termination, the Underwriters, with
prior written notice to the Company and SunTrust, enter into new contracts
of
sale with investors for the Offered Certificates, then “Time of Sale
Information” will refer to the documents agreed upon in writing by the Company
and the Underwriters that correct such material misstatements or omissions
(a
“Corrected Prospectus”) and “Time of Sale” will refer to the time and
date agreed upon by the Company and the Underwriters.
The
Company has filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (No. 333-130373) for
the registration of the Offered Certificates under the Securities Act of 1933
(the “1933 Act”), which registration statement has become effective, is
still effective as of the date hereof and was declared effective by the
Commission within three years prior to the Closing Date and copies of which,
as
amended to the date hereof, have been delivered to the
Underwriters. The Company proposes to file with the Commission
pursuant to Rule 424(b)(5) under the rules and regulations of the Commission
under the 1933 Act (the “1933 Act Regulations”) a prospectus supplement,
dated March [28], 2007 (the “Prospectus Supplement”), to the prospectus,
dated February 26, 2007, included in such registration statement, relating
to
the Offered Certificates and the method of distribution thereof. Such
registration statement on Form S-3, including exhibits thereto, as amended
as of
the date hereof, is hereinafter called the “Registration Statement”; and
such prospectus, supplemented by the Prospectus Supplement or further supplement
relating to the Offered Certificates, is hereinafter called the
“Prospectus”.
SECTION
1. Representations and
Warranties. (a) The Company represents and warrants to the
Underwriters as follows:
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(i) The
Registration Statement, as amended as of the effective date thereof (the
“Effective Date”) and the Prospectus, as of the date thereof, complied in
all material respects with the requirements of the 1933 Act and the 1933 Act
Regulations. The Registration Statement, as of the Effective Date,
did not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading. The Prospectus, as of the date thereof, did
not, and as of 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, however, that the representations
and warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus (A) arising from or included
in the information covered by (I) SunTrust, in the Indemnification and
Contribution Agreement to which it is a party (the “SunTrust
Information”), (II) Xxxxx Fargo Bank, N.A., in the Indemnification
Agreement to which it is a party (the “Xxxxx Fargo Information”), and
(III) U.S. Bank National Association, in the Indemnification Agreement to
which it is a party (the “U.S. Bank”), relating to the information
regarding it in the Prospectus Supplement (the “Originator, Underwriting
Standards, Sponsor and Servicer Information; Master Servicer and Servicer
Information; and the Trustee Information”) (collectively, the
“Indemnification Agreements”), or (B) made in reliance upon and in
conformity with information furnished to the Company in writing by the
Underwriters expressly for use in the Registration Statement or
Prospectus. The Company and the Underwriters hereby acknowledge that
only the statements set forth in the paragraph immediately preceding the final
paragraph of the cover of the Prospectus Supplement, the last sentence of the
final paragraph of the cover of the Prospectus Supplement, and the final two
paragraphs under the caption “Underwriting” in the Prospectus Supplement
constitute statements made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriters expressly for use in
the
Registration Statement or Prospectus (the “Underwriters’ Information”
and, together with the SunTrust Information, the Xxxxx Fargo Information,
the
“Excluded Information”).
(ii) The
Time of Sale Information, at the Time of Sale, did not, and at the Closing
Date
will not, contain any untrue statement of a material fact or omit to state
a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading; provided that
the
Depositor makes no representation and warranty with respect to any statements
or
omissions made in reliance upon and in conformity with the Excluded
Information.
(iii) Since
the respective dates as of which information is given in the Registration
Statement, the Time of Sale Information and the Prospectus, except as otherwise
stated therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary course
of business, and (B) there have been no transactions entered into by the
Company, other than those in the ordinary course of business, which are material
with respect to the Company.
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(iv) The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware with corporate power
and
authority to own, lease and operate its properties and to conduct its business,
as now conducted by it, and to enter into and perform its obligations under
the
Transaction Documents to which it is a party; and the Company is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the
ownership or leasing of property or the conduct of business.
(v) The
Company is not in violation of its charter or in default in the performance
or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease
or
other instrument to which the Company is a party, or to which any of the
property or assets of the Company may be subject, or by which it or any of
them
may be bound; and the issuance and sale of the Offered Certificates to the
Underwriters, the execution, delivery and performance of the Transaction
Documents to which it is a party and the consummation of the transactions
contemplated therein and compliance by the Company with its obligations
thereunder have been duly authorized by all necessary corporate action and
will
not 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 Company pursuant to any material contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which the Company is a party
or by which it or any of them may be bound, or to which any of the property
or
assets of the Company is subject, nor will such action result in any violation
of the provisions of the charter or by-laws of the Company or any applicable
law, administrative regulation or administrative or court decree.
(vi) There
is no action, suit or proceeding before or by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company, which is required to be disclosed
in the Registration Statement (other than as disclosed therein), or which might
result in any material adverse change in the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the Company,
or
which might materially and adversely affect the properties or assets thereof
or
which might materially and adversely affect the consummation of the transactions
contemplated by the Transaction Documents to which it is a party; all pending
legal or governmental proceedings to which the Company is a party or of which
its property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
the
business, are, considered in the aggregate, not material; and there are no
contracts or documents of the Company which are required to be filed as exhibits
to the Registration Statement by the 1933 Act or by the 1933 Act Regulations
which have not been so filed.
(vii) No
authorization, approval or consent of any court or governmental authority or
agency is necessary in connection with the offering, issuance or sale of the
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
Pooling and Servicing Agreement that have not yet been completed.
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(viii) The
Company possesses all material licenses, certificates, authorities 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 Company
has
not received any notice of proceedings relating to the revocation or
modification of any such license, certificate, authority 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
Company.
(ix) Each
of the Transaction Documents to which it is a party has been duly authorized,
executed and delivered by the Company and constitutes a legal, valid and binding
agreement enforceable against the Company in accordance with its terms, except
as enforceability may be limited by (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 such Transaction Documents that purport to provide indemnification
from securities law liabilities.
(x) At
the time of the execution and delivery of the Pooling and Servicing Agreement,
the Company (i) will have good and marketable title to the Mortgage Loans
being transferred by the Company to the Trustee pursuant thereto, free and
clear
of any lien, mortgage, pledge, charge, encumbrance, adverse claim or other
security interest (collectively “Liens”), (ii) will not have
assigned to any person any of its right, title or interest in such Mortgage
Loans or in the Mortgage Loan Purchase Agreement, or the Offered Certificates
being issued pursuant to the Pooling and Servicing Agreement, and
(iii) will have the power and authority to transfer such Mortgage Loans to
the Trustee and sell the Offered Certificates to the Underwriters, and upon
execution and delivery of the Pooling and Servicing Agreement, the Trustee
will
have acquired ownership of all of the Company’s right, title and interest in and
to the related Mortgage Loans, and upon delivery to the Underwriters of the
Offered Certificates, the Underwriters will have good and marketable title
to
the Offered Certificates, in each case free of Liens.
(xi) The
Offered Certificates and the Pooling and Servicing Agreement will each conform
in all material respects to the descriptions thereof contained in the Prospectus
and the Time of Sale Information, and the Offered Certificates, when duly and
validly authorized, executed, authenticated and delivered in accordance with
the
Pooling and Servicing Agreement and paid for by the Underwriters as provided
herein, will be entitled to the benefits of the Pooling and Servicing
Agreement.
(xii) The
Trust created by the Pooling and Servicing Agreement will not be required to
be
registered as an investment company under the Investment Company Act of 1940,
as
amended (the “1940 Act”), and the Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as amended
(the
“Trust Indenture Act”).
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(xiii) At
the Closing Date, the Class 1-A-1, Class 1-A-2, Class 2-A-1, Class 2-A-2, Class
3-A-1, Class 3-A-2, Class 3-A-3, Class 3-A-4, Class 4-A-1, Class 4-A-2, Class
5-A-1 and Class 5-A-2, certificates will be rated not lower than “AAA” by
Standard & Poor’s Ratings Services, a division of The XxXxxx-Xxxx Companies,
Inc. (“S&P”) and Fitch Ratings (“Fitch”). The Class
B-1 certificates will be rated not lower than “AA” by Fitch. The
Class B-2 certificates will be rated not lower than “A” by Fitch. The
Class B-3 certificates will be rated not lower than “BBB” by
Fitch. The Class B-4 certificates will be rated not lower than “BB”
by Fitch. The Class B-5 certificates will be rated not lower than “B”
by Fitch.
(xiv) Any
taxes, fees and other governmental charges in connection with the execution,
delivery and issuance of the Transaction Documents to which it is a party and
the Offered Certificates have been paid or will be paid at or prior to the
Closing Date.
(xv) The
sale of the Mortgage Loans to the Trustee on the Closing Date and the sale
by
the Company of the Offered Certificates will be treated by the Company for
financial accounting and reporting purposes as a sale of assets and not as
a
pledge of assets to secure debt.
(xvi) The
Company has filed or will file the Term Sheet Supplement, each Free Writing
Prospectus and any “issuer information” as defined under Rule 433(h) under the
Act included in any Free Writing Prospectus that is required to have been filed
under the Act and the Rules and Regulations and it has done or will do so within
the applicable periods of time required under the Act and the Rules and
Regulations.
(xvii) As
of the Time of Sale, the Company was not and as of the Closing Date is not,
an
“ineligible issuer,” as defined in Rule 405 under the Act.
(b) Any
certificate signed by any officer of the Company and delivered to the
Underwriters or their counsel shall be deemed a representation and warranty
by
the Company to the Underwriters as to the matters covered thereby.
Purchase
and Sale. Subject to the terms and conditions herein set forth
and in reliance upon the representations and warranties herein contained, the
Company agrees to sell to UBS, and UBS agrees to purchase from the Company,
the
Certificates. STCM has agreed to use reasonable efforts to place the
offered certificates in exchange for a fixed fee equal to a percentage portion
of the underwriting discounts.
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SECTION
2. Delivery and Payment. Payment of the
purchase price for, and delivery of, the Offered Certificates to be purchased
by
the Underwriters shall be made at the office of UBS Securities LLC, 0000 Xxxxxx
xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as shall
be
agreed upon by the Underwriters and the Company, at 10:00 A.M. New York City
time, on March 30, 2007, which date and time may be postponed by agreement
between you and the Company (such time and date of payment and delivery being
herein called the “Closing Date”). Payment shall be made to
the Company by immediately available Federal funds wired to such bank as may
be
designated by the Company, against delivery of the Offered
Certificates. The Offered Certificates shall be in such denominations
and registered in such names as you may request in writing at least two business
days before Closing Date. The Offered Certificates will be made
available for examination and packaging by you no later than 10:00 A.M. on
the
last business day prior to Closing Date.
SECTION
3. Covenants of the Company. The Company
covenants with the Underwriters as follows:
(a) The
Company will give the Underwriters notice of its intention to file or prepare
any amendment to the Registration Statement or any amendment or supplement
to
the Prospectus or the Time of Sale Information (including any revised prospectus
which the Company proposes for use by the Underwriters in connection with the
offering of the Offered Certificates which differs from the prospectus on file
at the Commission at the time the Registration Statement becomes effective,
whether or not such revised prospectus is required to be filed pursuant to
Rule
424(b) of the 1933 Act Regulations), will furnish the Underwriters with copies
of any such amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such amendment
or supplement or use any such prospectus to which the Underwriters shall
reasonably object.
(b) The
Company will cause the Prospectus to be transmitted to the Commission for filing
pursuant to Rule 424(b)(5) under the 1933 Act by means reasonably calculated
to
result in filing with the Commission pursuant to said rule. The
Company will file with the Commission each Free Writing Prospectus and any
“issuer information” (as defined above) included in any Free Writing Prospectus
that the Company is required to file under the 1933 Act Regulations, and in
each
case will do so within the applicable period of time required under the 1933
Act
Regulations. The Company will advise the Underwriters promptly of any
such filings.
(c) The
Company will deliver to the Underwriters as many signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) as
the
Underwriters may reasonably request and will also deliver to the Underwriters
a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits).
(d) The
Company will furnish to the Underwriters, from time to time during the period
when the Prospectus is required to be delivered under the 1933 Act or the
Securities Exchange Act of 1934 (the “1934 Act”), such number of copies
of the Prospectus (as amended or supplemented) as the Underwriters may
reasonably request for the purposes contemplated by the 1933 Act or the 1934
Act
or the respective applicable rules and regulations of the Commission
thereunder.
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(e) If
during the period after the first date of the public offering of the Offered
Certificates in which a prospectus relating to the Offered Certificates is
required to be delivered under the 1933 Act, any event shall occur as a result
of which it is necessary, in the opinion of counsel for you, to amend or
supplement the Prospectus in order to make the Prospectus not misleading in
the
light of the circumstances existing at the time it is delivered to a purchaser,
the Company will forthwith amend or supplement the Prospectus (in form and
substance satisfactory to counsel for you) so that, as so amended or
supplemented, the Prospectus will not include 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 existing at the time it is delivered
to a purchaser, not misleading, and the Company will furnish to the Underwriters
a reasonable number of copies of such amendment or supplement.
(f) The
Company will endeavor to arrange for the qualification of the Offered
Certificates for sale under the applicable securities laws of such states and
other jurisdictions of the United States as the Underwriters may designate;
provided, however, that the Company shall not be obligated to
qualify as a foreign corporation in any jurisdiction in which it is not so
qualified. In each jurisdiction in which the Offered Certificates
have been so qualified, the Company will file such statements and reports as
may
be required by the laws of such jurisdiction to continue such qualification
in
effect for a period of not less than one year from the effective date of the
Registration Statement.
(g) The
Company will use the net proceeds received by it from the sale of the Offered
Certificates in the manner specified in the Prospectus under “Use of
Proceeds”.
(h) If
the transactions contemplated by this Agreement are consummated, the Company
will pay or cause to be paid all expenses incident to the performance of the
obligations of the Company under this Agreement, and will reimburse the
Underwriters for any reasonable expenses (including reasonable fees and
disbursements of counsel) reasonably incurred by them in connection with
qualification of the Offered Certificates for sale and determination of their
eligibility for investment under the laws of such jurisdictions as the
Underwriters have reasonably requested and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the rating
of
the Offered Certificates, and for expenses incurred in distributing any Free
Writing Prospectus and the Prospectus (including any amendments and supplements
thereto) to the Underwriters. Except as herein provided, the
Underwriters shall be responsible for paying all costs and expenses incurred
by
it including the fees and disbursements of counsel, in connection with the
purchase and sale of the Offered Certificates.
(i) The
Company will (i) if still subject to the reporting requirements of the
Exchange Act with respect to the Trust, file or cause to be filed with the
Commission a report on Form 10-D in accordance with Item 1121(b) of Regulation
AB under the Act or (ii) if no longer subject to the reporting requirements
of the Securities Exchange Act of 1934, as amended (the “Exchange Act”)
with respect to the Trust, provide to the holders of the Offered Notes,
information comparable to that contained in the Prospectus relating to the
Initial Receivables regarding the characteristics of the subsequent receivables
(the “Subsequent Receivables Information”).
(j) If,
during the period after the Closing Date in which a prospectus relating to
the
Offered Certificates is required to be delivered under the 1933 Act, the Company
receives notice that a stop order suspending the effectiveness of the
Registration Statement or preventing the offer and sale of the Offered
Certificates is in effect, the Company will immediately advise the Underwriters
of the issuance of such stop order. The Company will make every
reasonable effort to prevent the issuance of any stop order and, if any stop
order is issued, to obtain the lifting thereof at the earliest possible
moment.
8
SECTION
4. Time of Sale Information and Free Writing
Prospectus.
(a) The
following terms have the specified meanings for purposes of this
Agreement:
(i) “Free
Writing Prospectus” means and includes any information relating to the
Offered Certificates disseminated by the Company or any Underwriter that
constitutes a “free writing prospectus” within the meaning of Rule 405 under the
1933 Act Regulations;
(ii) “Prepricing
Information” means information relating to the price, pricing speed,
benchmark and status of the Offered Certificates and the offering
thereof.
(iii) “Computer
Tape Information” means written information regarding the Mortgage Loans or
the related receivables contained in the electronic data file furnished by
the
Company to UBS.
(b) The
Company will not disseminate to any potential investor any information relating
to the Offered Certificates that constitutes a “written communication” within
the meaning of Rule 405 under the 1933 Act Regulations, other than the Time
of
Sale Information and the Prospectus, unless the Company has obtained the prior
consent of one of the Underwriters.
(c) Neither
the Company nor any Underwriter shall disseminate or file with the Commission
any information relating to the Offered Certificates in reliance on Rule 167
or
426 under the 1933 Act Regulations, nor shall the Company or any Underwriter
disseminate any Free Writing Prospectus “in a manner reasonably designed to lead
to its broad unrestricted dissemination” within the meaning of Rule 433(d) under
the 1933 Act Regulations.
(d) Each
Underwriter and the Company represent that each Free Writing Prospectus
distributed by it shall bear the following legend, or a substantially similar
legend that complies with Rule 433 under the 1933 Act Regulations:
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this communication relates. Before you
invest, you should read the prospectus in that registration statement and other
documents the depositor has filed with the SEC for more complete information
about the depositor, the issuing trust, and this offering. You may
get these documents for free by visiting XXXXX on the SEC Web site at
xxx.xxx.xxx. 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 0-(000) 000-0000.
(e) In
the event that the Company becomes aware that, as of the Time of Sale, any
Time
of Sale Information contains or contained any untrue statement of material
fact
or omits or omitted to state a material fact necessary in order to make the
statements contained therein (when read in conjunction with all Time of Sale
Information) in light of the circumstances under which they were made, not
misleading (a “Defective Prospectus”), such entity shall promptly notify
the Underwriters of such untrue statement or omission no later than one business
day after discovery and the Company shall, if requested by the Underwriters,
prepare and deliver to the Underwriters, at the expense of the Underwriters
if
such untrue statement or omission relates solely to Underwriters’ Information,
and otherwise at the expense of the Company, a Corrected
Prospectus.
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(f) Each
Underwriter represents, warrants, covenants and agrees with the Company
that:
(i) Other
than the Free Writing Prospectus and the Prospectus, it has not made, used,
prepared, authorized, approved or referred to and will not prepare, make, use,
authorize, approve or refer to any “written communication” (as defined in Rule
405 under the 1933 Act Regulations) that constitutes an offer to sell or
solicitation of an offer to buy the Notes, including but not limited to any
“ABS
informational and computational materials” as defined in Item 1101(a) of
Regulation AB under the 1933 Act Regulations; provided, however,
that (i) each Underwriter may prepare and convey one or more “written
communications” (as defined in Rule 405 under the 1933 Act Regulations)
containing no more than, and the Underwriter conveying such information
represents that such written communication contains no more than, the following:
(1) the information in any Free Writing Prospectus, (2) information
relating to the class, size, rating, CUSIPS, coupon, yield, spread, closing
date, legal maturity, weighted average life, expected final payment date, trade
date and payment window of one or more classes of Offered Certificates,
(3) the servicer clean up call, (4) the eligibility of the Offered
Notes to be purchased by XXXXX plans, (5) Prepricing Information,
(6) a column or other entry showing the status of the subscriptions for the
Offered Certificates (both for the issuance as a whole and for each
Underwriter’s retention) and/or expected pricing parameters of the Offered Notes
and (7) Intex .cdi files (each such written communication, a “Permitted
Underwriter Communication”); and (ii) each Underwriter will be permitted to
provide confirmations of sale; provided, however, that no
Underwriter has or may distribute any information described in subclauses (1)
through (7) above that would be “issuer information” as defined in Rule 433
under the 1933 Act Regulations other than (A) information that has already
been filed with the Commission, (B) preliminary terms of the Offered
Certificates not required to be filed with the Commission and
(C) information relating to the final terms of the Offered Certificates
required to be filed with the Commission within two days of the later of the
date such final terms have been established for all classes of the Offered
Notes
and the date of first use of such information pursuant to Rule 433(b)(5)(ii)
under the 1933 Act Regulations.
(ii) In
disseminating information to prospective investors, it has complied and will
continue to comply fully with the Rules and Regulations, including but not
limited to Rules 164 and 433 under the 1933 Act Regulations and the requirements
thereunder for filing and retention of Free Writing Prospectuses, including
retaining any Free Writing Prospectuses it has used but which are not required
to be filed for the required period.
(iii) Prior
to entering into any Contract of Sale, the applicable Underwriter shall convey
the Time of Sale Information to the prospective investor. The
Underwriter shall maintain sufficient records to document its conveyance of
the
Time of Sale Information to the potential investor prior to the formation of
the
related Contract of Sale and shall maintain such records as required by the
Rules and Regulations.
10
(iv) If
a Defective Prospectus has been corrected with a Corrected Prospectus delivered
to such Underwriter, it shall (A) deliver the Corrected Prospectus to each
investor with whom it entered into a Contract of Sale and that received the
Defective Prospectus from it prior to entering into a new Contract of Sale
with
such investor, (B) notify such investor in a prominent fashion that the
prior Contract of Sale with the investor, if any, has been terminated and of
the
investor’s rights as a result of such agreement and (C) provide such
investor with an opportunity to affirmatively agree to purchase the Offered
Notes on the terms described in the Corrected Prospectus.
(g) Each
Underwriter shall deliver to the Company, not less than one business day prior
to the required date of filing thereof, all information included in a Permitted
Underwriter Communication relating to the final terms of the Offered
Certificates required to be filed with the Commission pursuant to Rule
433(b)(5)(ii) under the 1933 Act Regulations.
(h) The
Company shall file with the Commission all information required to be filed
that
is delivered to it pursuant to Section 5(g) not later than two days after the
later of the date such final terms have been established for all classes of
the
Offered Certificates and the date of first use of such information pursuant
to
Rule 433(b)(5)(ii) under the 1933 Act Regulations; provided,
however, that the Company shall have no liability for any such failure
resulting from the failure of any Underwriter to provide such information to
the
Company in accordance with Section 5(g).
(i) In
the event that any Underwriter shall incur any costs in connection with the
reformation of the Contract of Sale with any investor that received a Defective
Prospectus, the Company agrees to reimburse such Underwriter for such costs;
provided the untrue statement or omission in the Defective Prospectus did not
relate solely to Underwriters’ Information.
SECTION
5. Conditions of Underwriters’
Obligations. The Underwriters’ obligation to purchase the Offered
Certificates shall be subject to the following conditions:
(a) No
stop order suspending the effectiveness of the Registration Statement shall
be
in effect, and no proceedings for that purpose shall be pending or, to the
Company’s knowledge, threatened by the Commission.
(b) At
Closing Date the Underwriters shall have received the favorable opinion, dated
as of the Closing Date, of Sidley Austin llp, counsel for the Company, in form
and substance satisfactory to the Underwriters.
(c) On
the Closing Date, there shall not have been, since the date hereof or since
the
respective dates as of which information is given in the Registration Statement,
the Prospectus, the Time of Sale Information, any material adverse change in
the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary course
of business, and the Underwriters shall have received a certificate of the
President or a Vice President of the Company, dated as of the Closing Date,
to
the effect that (i) the representations and warranties in Section 1 hereof
are true and correct with the same force and effect as though expressly made
at
and as of the Closing Date, (ii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to the Closing Date, and (iii) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or threatened by the
Commission.
11
(d) On
the Closing Date counsel for the Underwriters shall have been furnished with
such other documents and opinions as they may reasonably require for the purpose
of enabling them to pass upon the issuance and sale of the Certificates as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of
any
of the conditions, herein contained; and all proceedings taken by the Company
in
connection with the issuance and sale of the Certificates as herein contemplated
shall be satisfactory in form and substance to the Underwriters and counsel
for
the Underwriters.
If
any
condition specified in this Section shall not have been fulfilled when and
as
required to be fulfilled, this Agreement may be terminated by the Underwriters
by notice to the Company at any time at or prior to the Closing Date, and such
termination shall be without liability of any party to any other
party.
SECTION
6. Indemnification. (a) The Company
agrees to indemnify and hold harmless the Underwriters and each person, if
any,
who controls the Underwriters within the meaning of Section 15 of the 1933
Act
as follows:
(i) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
(A) arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), including the information deemed to be part of the Registration
Statement pursuant to Rule 430A(b) of the 1933 Act Regulations, if applicable,
or the omission or alleged omission therefrom of a material fact required to
be
stated therein or necessary to make the statements therein not misleading,
(B) arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Time of Sale Information or Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission therefrom
of 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
(C) arising out of any untrue statement or alleged untrue statement of a
material fact contained in a Permitted Underwriter Communication or the omission
or alleged omission therefrom of 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 this subsection (C)
shall only apply to untrue statements, alleged untrue statements, omissions
and
alleged omissions that result from errors or omissions (x) in the
Registration Statement, the Free Writing Prospectus or the Prospectus (unless
such errors or omissions are in the Underwriter Information) and (y) in any
Computer Tape Information;
(ii) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
to the extent of the aggregate amount paid in settlement of any litigation,
or
any investigation or proceeding by any governmental agency or body, commenced
or
threatened, or of any claim whatsoever based upon any such untrue statement
or
omission, or any such alleged untrue statement or omission, if such settlement
is effected with the written consent of the Company; and
12
(iii) against
any and all expense whatsoever, as incurred (including, the fees and
disbursements of counsel chosen by the Underwriters), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
provided,
however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission (a) arising
from or included in the Originator, Underwriting Standards, Sponsor and Servicer
Information; Master Servicer and Servicer Information; and the Trustee
Information or (b) made in reliance upon and in conformity with written
information, if any, furnished to the Company by the Underwriters expressly
for
use in the Registration Statement (or any amendment thereto) or Prospectus
(or
any amendment or supplement thereto). The Company and the
Underwriters hereby acknowledge that only the statements set forth in the
paragraph immediately preceding the final paragraph of the cover of the
Prospectus Supplement, the last sentence of the final paragraph of the cover
of
the Prospectus Supplement, and the final two paragraphs under the caption
“Underwriting” in the Prospectus Supplement constitute statements made in
reliance upon and in conformity with information furnished to the Company in
writing by the Underwriters expressly for use in the Registration Statement
or
Prospectus.
(b) The
Underwriters agree to indemnify, jointly and severally, and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act against any and all loss, liability, claim, damage
and expense described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in (i) the Registration
Statement (or any amendment thereto), the Time of Sale Information or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Company by the Underwriters
expressly for use in the Registration Statement (or any amendment thereto),
the
Time of Sale Information or the Prospectus (or any amendment or supplement
thereto) or (ii) any Permitted Underwriter Communication (other than
Prepricing Information) that does not result from an error or omission in
(A) the Registration Statement, the Time of Sale Information or the
Prospectus (unless such error or omission is in the Underwriter Information)
or
(B) any Computer Tape Information. The Company and the
Underwriters hereby acknowledge that only the statements set forth in the second
paragraph immediately preceding the final paragraph of the cover of the
Prospectus Supplement and the paragraph immediately preceding the final
paragraph of the cover of the Prospectus Supplement, and under the caption
“Underwriting” in the Prospectus Supplement constitute statements made in
reliance upon and in conformity with information furnished to the Company in
writing by the Underwriters expressly for use in the Registration Statement
or
Prospectus.
13
(c) Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it
may
have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of any
such
action. 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.
SECTION
7. Contribution. In order to provide for
just and equitable contribution in circumstances in which the indemnity
agreement provided for in Section 6 hereof is for any reason held to be
unenforceable by the indemnified parties although applicable in accordance
with
its terms, the Company and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated
by
such indemnity agreement incurred by the Company and the Underwriters, as
incurred, in such proportion as is appropriate to reflect not only the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Offered Certificates but also the relative fault
of the Company on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted on such losses, claims, damages
or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and
of the Underwriters on the other shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material
fact
relates to information supplied by the Company or by the Underwriters, and
the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission; provided, however,
that no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this Section, each person, if any, who controls an Underwriters within the
meaning of Section 15 of the 1933 Act shall have the same rights to contribution
as such Underwriters, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act shall
have
the same rights to contribution as the Company.
SECTION
8. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements
contained in this Agreement, or contained in certificates of officers of the
Company submitted pursuant hereto, shall remain operative and in full force
and
effect, regardless of any investigation made by or on behalf of any Underwriters
or controlling person, or by or on behalf of the Company, and shall survive
delivery of the Offered Certificates to the Underwriters.
SECTION
9. Termination of Agreement. (a) The
Underwriters may terminate this Agreement, by notice to the Company, at any
time
at or prior to the Closing Date (i) if there has been, since the date of
this Agreement or since the date as of which information is given in the
Registration Statement, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of
the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, or (ii) if there has occurred
any material adverse change in the financial markets in the United States or
elsewhere or any outbreak of hostilities or escalation thereof or other calamity
or crisis the effect of which is such as to make it, in the judgment of the
Underwriters, impracticable to market the Offered Certificates or to enforce
contracts for the sale of the Offered Certificates, or (iii) if trading
generally on either the American Stock Exchange or the New York Stock Exchange
has been suspended, or minimum or maximum prices for trading have been fixed,
or
maximum ranges for prices for securities have been required, by either of said
Exchanges or by order of the Commission or any other governmental authority,
or
if a banking moratorium has been declared by either Federal or New York
authorities.
14
(b) If
this Agreement is terminated pursuant to this Section, such termination shall
be
without liability of any party to any other party.
SECTION
10. Notices. All notices and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be directed to
UBS Securities LLC at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxxxxxxxx and to SunTrust Capital Markets, Inc.,
000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, [contact]; and notices to the
Company shall be directed to it at Mortgage Asset Securitization Transactions,
Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention of the
Secretary with a copy to the Treasurer; or, as to any party, such other address
as may hereafter be furnished by such party to the others in
writing.
SECTION
11. Parties. This Agreement shall inure to
the benefit of and be binding upon the Underwriters and the Company and their
respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters and the Company and their respective
successors and the controlling persons and officers and directors referred
to in
Section 6 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters
and the Company and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and for
the benefit of no other person, firm or corporation. No purchaser of
Offered Certificates from the Underwriters shall be deemed to be a successor
by
reason merely of such purchase.
SECTION
12. Governing Law; and Time. This Agreement
shall be governed by and construed in accordance with the laws of the State
of
New York applicable to agreements made and to be performed in said
State. Specified times of day refer to New York City
time.
[SIGNATURE
PAGE FOLLOWS]
15
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to the Company a counterpart hereof, whereupon this Agreement, along
with all counterparts, will become a binding agreement between the Underwriters
and the Company in accordance with its terms.
| Very truly yours, | |||
|
MORTGAGE ASSET
SECURITIZATION
TRANSACTIONS, INC.
|
|||
|
|
By:
|
/c/ Xxxxxx Xxxxx | |
| Name: Xxxxxx Xxxxx | |||
| Title: Associate Director | |||
|
|
By:
|
/c/ Xxxxx Xxxx | |
| Name: Xxxxx Xxxx | |||
| Title: Associate Director | |||
CONFIRMED
AND ACCEPTED,
as
of the
date first above written:
UBS
SECURITIES LLC
|
By: /c/ Xxxxxx
Xxxxx
|
||
|
Name: Xxxxxx
Xxxxx
Title: Associate
Director
|
||
|
|
||
|
By: /c/ Xxxxx
Xxxx
|
||
|
Name: Xxxxx
Xxxx
Title: Associatd
Director
|
||
|
|
||
SUNTRUST CAPITAL MARKETS, INC.
|
|
||
|
By: Xxxxxxx
X. XxXxxxx
|
||
|
Name: Xxxxxxx
X. XxXxxxx
Title: Managing
Director
|
||
|
|
||
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