MORTGAGE ASSET SECURITIZATION TRANSACTIONS, INC. MASTR Asset-Backed Securities Trust 2006-WMC2 Mortgage Pass-Through Certificates UNDERWRITING AGREEMENT
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
$745,078,000
MASTR
Asset-Backed Securities Trust 2006-WMC2
Mortgage
Pass-Through Certificates
June
1,
2006
UBS
Securities LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Mortgage
Asset Securitization Transactions, Inc., a Delaware corporation (the
“Company”),
proposes to sell to UBS Securities LLC (the “Underwriter”),
pursuant to this agreement (“Agreement”),
the
Company’s Mortgage Pass-Through Certificates, Series 2006-WMC2, Class A-1, Class
X-0, Xxxxx X-0, Class X-0, Xxxxx X-0, Class M-1, Class M-2, Class M-3, Class
M-4, Class M-5, Class M-6, Class M-7, Class M-8, and Class-M-9 Certificates
(the
“Offered
Certificates”
and,
together with the Class M-10, CE, Class P, Class R and Class R-X Certificates,
the “Certificates”)
issued
pursuant to the Pooling and Servicing Agreement, dated as of June 1, 2006 (the
“Pooling
and Servicing Agreement”),
among
the Company, as depositor, Xxxxx Fargo Bank, N.A, as servicer, master servicer,
trust administrator and custodian (the “Servicer”,
the
“Master
Servicer”,
the
“Trust
Administrator”
and
“Custodian”)
and
U.S. Bank National Association, as trustee (the “Trustee”).
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 one
to four-family residential mortgage loans (the “Mortgage
Loans”).
Pursuant to the Assignment and Recognition Agreement, dated as of June 29,
2006
(the “Assignment
Agreement”),
among
UBS Real Estate Securities Inc. (“UBSRES”),
the
Company and WMC Mortgage Corp. (“WMC”),
the
Mortgage Loans will be purchased from UBSRES by the Company in exchange for
the
Class CE and Class P Certificates and net proceeds from the sale of the
remaining Certificates. 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 Underwriter’s purchase of the
Offered Certificates.
Reference
is hereby made to (i) the Indemnification Agreement, dated as of June 1, 2006
(the “Trustee Indemnification Agreement”), between the Company and the Trustee;
the Indemnification Agreement, dated as of June 1, 2006 (the “WMC
Indemnification Agreement”), between the Company and WMC; the Indemnification
Agreement, dated as of June 1, 2006 (the “Servicer Indemnification Agreement”),
between the Company and the Servicer; the Indemnification Agreement, dated
as of
June 1, 2006 (the “Swap Provider Indemnification Agreement”), between the
Company and UBS AG (the “Swap Provider”); the Indemnification Agreement, dated
as of June 1, 2006 (the “Master Servicer Indemnification Agreement” together
with the Trustee Indemnification Agreement, the WMC Indemnification Agreement,
the Swap Provider and the Servicer Indemnification Agreement, the
“Indemnification Agreements”), between the Company and the Master Servicer. The
Pooling and Servicing Agreement, the Assignment Agreement and the
Indemnification Agreements are collectively referred to herein as the
“Transaction
Documents.”
The
Certificates are described more fully in the Prospectus (as hereinafter
defined). Only the Offered Certificates are being sold pursuant to this
Agreement.
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 and copies of which, as amended
to
the date hereof, have been delivered to the Underwriter. 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, as amended (the “1933
Act Regulations”)
a
prospectus supplement (the “Prospectus
Supplement”),
to
the prospectus, dated June 1, 2006, 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.”
The
free writing prospectus, dated May 30, 2006, to the prospectus, dated April
18,
2006 which, is proposed to be used in connection with the sale of the Offered
Certificates and filed with the Commission pursuant to Rule 433 under the 1933
Act, is hereinafter referred to as the “Preliminary Prospectus.”
SECTION
1. Representations
and Warranties.
(i)
The
Company represents and warrants to the Underwriter as follows:
(a) The
Registration Statement, as amended as of the effective date thereof (the
“Effective
Date”),
the
Preliminary Prospectus, as of the date thereof and as of the date of the
Contract of Sale, 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 Preliminary Prospectus, as amended or supplemented as of
its
date and as of the date of the Contract of Sale and 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 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, Preliminary Prospectus or Prospectus (A) arising
from or included in the Company Information (as defined in the Indemnification
Agreement) or (B) made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriter expressly for use in
the
Registration Statement or Prospectus. The Company and the Underwriter hereby
acknowledge that only the statements set forth on Exhibit A hereto (the
“Underwriter’s
Information”)
constitute statements made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriter expressly for use in
the
Registration Statement or Prospectus.
(b) Since
the
respective dates as of which information is given in the Registration Statement,
Preliminary Prospectus and 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.
(c) 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.
(d) 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
Underwriter, the execution, delivery and performance of the Transaction
Documents to which it is a party and the consummation of the transactions
contemplated therein and herein and compliance by the Company with its
obligations thereunder and hereunder 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.
(e) 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.
(f) 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 Underwriter 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.
(g) 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.
(h) 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.
(i) 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 it 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 Assignment 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 Underwriter, 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 Underwriter of the Offered Certificates, the
Underwriter will have good and marketable title to the Offered Certificates,
in
each case free of Liens.
(j) The
Offered Certificates and the Pooling and Servicing Agreement will each conform
in all material respects to the descriptions thereof contained in the
Preliminary Prospectus and Prospectus, 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 Underwriter as provided
herein, will be entitled to the benefits of the Pooling and Servicing
Agreement.
(k) 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”).
(l) At
the
Closing Date, the Class A-1, Class A-2, Class A-3, Class A-4 and Class A-5
Certificates will be rated not lower than “Aaa” by Xxxxx’x Investors Service,
Inc. (“Moody’s”)
and
“AAA” by Standard & Poor’s, a division of The McGraw Hill Companies, Inc.
(“S&P”).
The
Class M-1 Certificates will be rated not lower than “AA+” by S&P and “Aa1”
by Moody’s, the Class M-2 Certificates will be rated not lower than “AA+” by
S&P and “Aa2” Moody’s, the Class M-3 Certificates will be rated not lower
than “AA” by S&P and “Aa3” by Moody’s, the Class M-4 Certificates will be
rated not lower than “AA” by S&P and “A1” by Moody’s, the Class M-5
Certificates will be rated not lower than “AA-” by S&P and “A2” by Moody’s,
the Class M-6 Certificates will be rated not lower than “A+” by S&P and “A3”
by Moody’s, the Class M-7 Certificates will be rated not lower than “A” by
S&P and “Baa1” by Moody’s, the Class M-8 Certificates will be rated not
lower than “BBB+” by S&P and “Baa2” by Moody’s and the Class M-9
Certificates will be rated not lower than “BBB” by S&P and “Baa3” by
Moody’s.
(m) 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.
(n) 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
(o) As
of the
Effective Date and as of the date of the Contract of Sale, the Depositor is
not
and will not be as of the Closing Date an “ineligible issuer” as defined in Rule
405 of the Securities Act.
(p) Any
certificate signed by any officer of the Company and delivered to the
Underwriter or its counsel shall be deemed a representation and warranty by
the
Company to the Underwriter as to the matters covered thereby.
(q) As
of the
Contract of Sale, the Preliminary Prospectus did not include any untrue
statement of a material fact or omission of any material fact necessary in
order
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
(r) No
Advisory or Fiduciary Responsibility.
The
Company acknowledges and agrees that: (i) the purchase and sale of the Offered
Certificates pursuant to this Agreement, including the determination of the
offering price of the Offered Certificates and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company and
the Underwriter and the Company is capable of evaluating and understanding
and
understands and accepts the terms, risks and conditions of the transactions
contemplated by this Agreement; (ii) in connection with each transaction
contemplated hereby and the process leading to such transaction each Underwriter
is and has been acting solely as a principal and is not the agent or fiduciary
of the Company, or its respective affiliates, stockholders, creditors or
employees or any other party; (iii) the Underwriter has not assumed or will
assume an advisory or fiduciary responsibility in favor of the Company with
respect to any of the transactions contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently
advising the Company on other matters) or any other obligation to the Company
except the obligations expressly set forth in this Agreement; (iv) the
Underwriter and its affiliates may be engaged in a broad range of transactions
that involve interests that differ from those of the Company and that the
Underwriter has no obligation to disclose any of such interests by virtue of
any
fiduciary or advisory relationship; and (v) the Underwriter has not provided
any
legal, accounting, regulatory or tax advice with respect to the offering
contemplated hereby and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
This
Agreement supersedes all prior agreements and understandings (whether written
or
oral) between the Company and the Underwriter, or any of them, with respect
to
the subject matter hereof. The Company hereby waives and releases, to the
fullest extent permitted by law, any claims that the Company may have against
the Underwriter with respect to any breach or alleged breach of fiduciary
duty.
SECTION
2. 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
the Underwriter, and the Underwriter agrees to purchase from the Company, at
a
purchase price set forth on Schedule A hereto, the principal amount of the
Offered Certificates set forth on Schedule A hereto.
SECTION
3. Delivery
and Payment.
Payment
of the purchase price for, and delivery of, the Offered Certificates to be
purchased by the Underwriter shall be made at the office of Xxxxxxx Xxxxxxxx
& Wood llp,
Two
World Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place as
shall be agreed upon by the Underwriter and the Company, at 10:00 A.M. New
York
City time, on June 29, 2006, 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, at its option, by (i) appropriate notation
of an inter company transfer between affiliates of UBS Securities LLC or (ii)
in
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
the
Underwriter may request in writing at least two business days before Closing
Date. The Offered Certificates will be made available for examination and
packaging by the Underwriter not later than 10:00 A.M. on the last business
day
prior to Closing Date.
SECTION
4. Covenants
of the Company.
(i) The
Company covenants with the Underwriter as follows:
(a) The
Company will give the Underwriter notice of its intention to file or prepare
any
amendment to the Registration Statement, any amendment or supplement to the
Preliminary Prospectus, Prospectus Supplement, or any amendment or supplement
to
the Prospectus (including any revised prospectus which the Company proposes
for
use by the Underwriter 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 433 or Rule 424(b) of the
1933 Act Regulations), will furnish the Underwriter 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 Underwriter shall reasonably
object.
(b) The
Company will cause the Preliminary Prospectus to be transmitted to the
Commission 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. The Company will cause the Prospectus Supplement and 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.
(c) The
Company will deliver to the Underwriter 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
Underwriter may reasonably request and will also deliver to the Underwriter
a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits).
(d) The
Company will furnish to the Underwriter, from time to time during the period
when the Preliminary Prospectus or Prospectus is required to be delivered under
the 1933 Act or the Securities Exchange Act of 1934, as amended (the
“1934
Act”),
such
number of copies of the Preliminary Prospectus or Prospectus (as amended or
supplemented) as the Underwriter 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.
(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 the Underwriter, 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 the Underwriter)
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 Underwriter 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 Underwriter 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
Underwriter 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
Underwriter has 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 the
Preliminary Prospectus or Prospectus (including any amendments and supplements
thereto) to the Underwriter. Except as herein provided, the Underwriter shall
be
responsible for paying all costs and expenses incurred by them, including the
fees and disbursements of counsel, in connection with the purchase and sale
of
the Offered Certificates.
(i) 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 Underwriter
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.
(j) In
connection with any transaction contemplated by this Agreement, the Company
and
each of its affiliates maintain customary, arm’s-length business relationships
with the Underwriter and each of its affiliates, and no fiduciary duty on the
part of the Underwriter or any of its affiliates is thereby or hereby intended
or created, and the express disclaimer of any such fiduciary relationship on
the
part of the Underwriter and each of its affiliates is hereby acknowledged and
accepted by the Company and each of its affiliates.
(k) The
Company will file or cause to be filed with the Commission such Free Writing
Prospectus that is either an Issuer Free Writing Prospectus (as defined in
Section 5(c) hereof) or contains Issuer Information as soon as reasonably
practicable after the date of this Agreement, but in any event, not later than
required pursuant to Rules 426 or 433, respectively, of the Securities
Act.
(l) The
Company shall not be required to file (A) any Free Writing Prospectus, if the
information included therein is included or incorporated by reference in a
prospectus or Free Writing Prospectus previously filed with the Commission
that
relates to the offering of the Certificates, or (B) any Free Writing Prospectus
or portion thereof that contains a description of the Certificates or the
offering of the Certificates which does not reflect the final terms thereof
(so
long as such information does not contain any Issuer Information).
(ii) The
Underwriter agrees with the Company that:
(a) The
Underwriter hereby represents and agrees to the terms set forth in Exhibit
B
hereto which are incorporated herein by reference.
(b) Prior
to entering into any Contract of Sale, the Underwriter shall convey the
Preliminary Prospectus to each prospective investor. The Underwriter shall
keep
sufficient records to document its conveyance of the Preliminary Prospectus
to
each potential investor prior to the related Contract of Sale.
(c) Unless
preceded or accompanied by a prospectus satisfying the requirements of Section
10(a) of the Securities Act, the Underwriter shall not convey or deliver any
written communication to any person in connection with the initial offering
of
the Certificates, unless such written communication (1) is made in reliance
on
Rule 134 under the Securities Act, (2) constitutes a prospectus satisfying
the
requirements of Rule 430B under the Securities Act or (3) is a Free Writing
Prospectus.
(d) The
Underwriter may convey a Preliminary Term Sheet or Free Writing Prospectus
to a
potential investor prior to entering into a Contract of Sale with such investor;
provided, however, that (x) such Underwriter shall not enter into a Contract
of
Sale with such investor unless the Underwriter has complied with paragraph
(i)
above prior to such Contract of Sale, (y) such Underwriter shall deliver a
copy
of the proposed Preliminary Term Sheet or Free Writing Prospectus to the
Depositor and its counsel prior to the anticipated first use and shall not
convey any such Preliminary Term Sheet or Free Writing Prospectus to which
the
Depositor or its counsel reasonably objects.
(e) The
Underwriter may convey Computational Materials (x) to a potential investor
prior
to entering into a Contract of Sale with such investor; provided, however,
that
(A) such Underwriter shall not enter into a Contract of Sale with such investor
unless the Underwriter has complied with paragraph (i) above prior to such
Contract of Sale and (B) such Computational Materials shall not be disseminated
in a manner reasonably designed to lead to its broad unrestricted dissemination;
provided, however, that if such Computational Materials are disseminated in
a
manner reasonably designed to lead to its broad unrestricted dissemination,
such
Underwriter shall file with the Commission such Computational Materials, and
(y)
to an investor after a Contract of Sale, provided that the Underwriter has
complied with paragraph (i) above in connection with such Contract of Sale.
The
Underwriter shall keep sufficient records of any conveyance of Computational
Materials to potential or actual investors and shall maintain such records
as
required by the Rules and Regulations.
(f) If
the
Underwriter does not furnish a Free Writing Prospectus to the Depositor’s
counsel prior to the scheduled print date of the Prospectus Supplement, such
Underwriter will be deemed to have represented that it did not convey any Free
Writing Prospectus to any potential investor.
(g) Each
Free
Writing Prospectus shall contain legends substantially similar to the
following:
The
issuer has filed a registration statement (including a prospectus) with the
SEC
for the offering to which this free writing prospectus relates. Before you
invest, you should read the prospectus in that registration statement and other
documents the issuer has filed with the SEC for more complete information about
the issuer and this offering. You may get these documents for free by visiting
XXXXX on the SEC Web site at xxx.xxx.xxx. Alternatively, the issuer, 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.
This
free
writing prospectus does not contain all information that is required to be
included in the base prospectus and the prospectus supplement.
The
information in this free writing prospectus supersedes information contained
in
any prior similar free writing prospectus relating to these securities prior
to
the time of your commitment to purchase.
The
asset-backed securities referred to in this free writing prospectus are being
offered when, as and if issued. In particular, you are advised that asset-backed
securities, and the asset pools backing them, are subject to modification or
revision (including, among other things, the possibility that one or more
classes of securities may be split, combined or eliminated), at any time prior
to issuance or availability of a final prospectus. As a result, you may commit
to purchase securities that have characteristics that may change, and you are
advised that all or a portion of the securities may not be issued that have
the
characteristics described in this free writing prospectus. Our obligation to
sell securities to you is conditioned on the securities having the
characteristics described in this free writing prospectus. If that condition
is
not satisfied, we will notify you, and neither the issuer nor the underwriter
will have any obligation to you to deliver all or any portion of the securities
which you have committed to purchase, and there will be no liability between
us
as a consequence of the non-delivery.
This
free
writing prospectus is being delivered to you solely to provide you with
information about the offering of the asset-backed securities referred to in
this free writing prospectus and to solicit an indication of your interest
in
purchasing such securities, when, as and if issued. Any such indication of
interest will not constitute a contractual commitment by you to purchase any
of
the securities.
(h) Any
Computational Materials shall include legends, in addition to those specified
in
paragraph (g) above, substantially similar to the following:
The
information in this free writing prospectus may be based on preliminary
assumptions about the pool assets and the structure. Any such assumptions are
subject to change.
The
information in this free writing prospectus may reflect parameters, metrics
or
scenarios specifically requested by you. If so, prior to the time of your
commitment to purchase, you should request updated information based on any
parameters, metrics or scenarios specifically required by you.
Neither
the issuer of the securities nor any of its affiliates prepared, provided,
approved or verified any statistical or numerical information presented in
this
free writing prospectus, although that information may be based in part on
loan
level data provided by the issuer or its affiliates.
(i) On
or
before the Closing Date, the Representative shall execute and deliver to Xxxxxxx
Xxxxxxxx & Wood LLP a copy of an original issue discount pricing letter,
provided to the Representative by Xxxxxxx Xxxxxxxx & Xxxx LLP.
(j) The
Underwriter agrees to retain all Free Writing Prospectuses that it has used
and
that are not required to be filed pursuant to this Section 5 for a period of
three years following the initial bona fide offering of the Offered
Certificates.
(iii) The
following terms shall have the meanings set forth below, unless the context
clearly indicates otherwise:
Computational
Materials: Any Free Writing Prospectus prepared by the Underwriter that contains
only (i) information specified in paragraph (5) of the definition of ABS
Informational and Computational Materials in Item 1101(a) of Regulation AB
or
(ii) information that is not Issuer Information.
Contract
of Sale: The meaning set forth in Rule 159 under the Securities
Act.
Derived
Information: Such information, if any, in any Free Writing Prospectus prepared
by any Underwriter that is not contained in either (i) the Registration
Statement, any Preliminary Prospectus, any Prospectus Supplement or the
Prospectus or amendments or supplements thereto, taking into account information
incorporated therein by reference (other than information incorporated by
reference from any) or (ii) any Pool Information.
Free
Writing Prospectus: A “written communication” within the meaning of Rule 405
under the Securities Act that describes the Certificates and/or the Mortgage
Loans.
Issuer
Information: Such information as defined in Rule 433(h) under the Securities
Act
and which shall not include information that is merely based on or derived
from
such information.
Issuer
Free Writing Prospectus: The meaning set forth in Rule 405 of the Securities
Act
except that (i) Computational Materials shall not be an Issuer Free Writing
Prospectus; (ii) any Free Writing Prospectus or portion thereof prepared by
or
on behalf of the underwriter that includes any Issuer Information that is not
approved by the Depositor for use therein shall not be an Issuer Free Writing
Prospectus and (iii) no Free Writing Prospectus shall be deemed to be prepared
by the Underwriter on behalf of the Issuer if such Free Writing Prospectus
is
not delivered to the Depositor prior to first use in accordance with Section
4(ii)(d) hereof.
Pool
Information: Information relating to the trust assets furnished by the Company
to any Underwriter upon which the mathematical calculations reflected in the
Computational Materials of such Underwriter are based.
Preliminary
Term Sheet: A Free Writing Prospectus that contains information described in
paragraphs (1) - (3) of the definition of ABS Informational and Computational
Materials in Item 1101(a) of Regulation AB but which does not include Derived
Information.
Static
Pool Data: The information set forth in the Prospectus Supplement pursuant
to
Item 1105 of Regulation AB under the Act, whether or not such information is
incorporated in the Prospectus Supplement or the Registration
Statement.
(iv)
(a) In
the event that any Underwriter or the Depositor becomes aware that, as of the
time of the Contract of Sale, any Free Writing Prospectus prepared by or on
behalf of the Underwriter or Preliminary Prospectus and delivered to a purchaser
of an Offered Certificate contained any untrue statement of a material fact
or
omitted to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances under which they were
made,
not misleading (such Free Writing Prospectus or Preliminary Prospectus, a
“Defective Prospectus”), the Underwriter or the Depositor shall notify the other
parties to this Agreement thereof within one business day after discovery.
(b)
The
party responsible for the information to be corrected, if requested by the
Depositor or the Underwriter, as appropriate, shall prepare a Free Writing
Prospectus or Preliminary Prospectus, as applicable, with Corrective Information
that corrects the material misstatement in or omission from the Defective
Prospectus (such corrected Free Writing Prospectus or Preliminary Prospectus,
a
“Corrected Prospectus”).
(c)
The
Underwriter shall deliver the Corrected Prospectus to each purchaser of an
Offered Certificate which received the Defective Prospectus prior to entering
into an agreement to purchase any Offered Certificates.
(d)
The
Underwriter shall notify such purchaser in a prominent fashion that the prior
agreement to purchase Offered Certificates has been terminated, and of such
purchaser’s rights as a result of termination of such agreement.
(e)
The
Underwriter shall provide such purchaser with an opportunity to affirmatively
agree to purchase such Offered Certificates on the terms described in the
Corrected Prospectus.
The
Underwriter covenants with the Depositor that after the final Prospectus is
available the Underwriter shall not distribute any written information
concerning the Offered Certificates to a prospective purchaser of Offered
Certificates unless such information is preceded or accompanied by the final
Prospectus.
SECTION
5. Conditions
of Underwriter’s Obligations.
The
Underwriter’s 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) By
the
Closing Date, the Underwriter shall have received the favorable opinion, dated
as of the Closing Date, of Xxxxxxx Xxxxxxxx & Wood llp,
counsel
for the Company, in form and substance satisfactory to the
Underwriter.
(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
and the Prospectus, 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
Underwriter 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.
(d) On
the
Closing Date counsel for the Underwriter 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 Underwriter and counsel
for
the Underwriter.
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 Underwriter
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.
(i)
The
Company agrees to indemnify and hold harmless the Underwriter and each person,
if any, who controls the Underwriter within the meaning of Section 15 of the
1933 Act as follows:
(a) against
any and all loss, liability, claim, damage and expense whatsoever, as incurred,
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 or arising
out of any untrue statement or alleged untrue statement of a material fact
contained in the Preliminary Prospectus, the Prospectus, any Issuer Free Writing
Prospectus (or any amendment or supplement thereto) or the Static Pool Data
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;
(b) 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
(c) against
any and all expense whatsoever, as incurred (including, the fees and
disbursements of counsel chosen by the Underwriter), 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 Radian Information, as defined in the Radian Indemnification Agreement,
the
Trustee Information, as defined in the Trustee Indemnification Agreement, the
Bear Xxxxxxx Information, as defined in the Bear Xxxxxxx Financial Products,
Inc. Indemnification Agreement, the Fremont Information, as defined in the
Fremont Indemnification Agreement, the Xxxxx Fargo Information, as defined
in
the Xxxxx Fargo Servicing Indemnification Agreement, the Xxxxx Fargo
Information, as defined in the Xxxxx Fargo Master Servicing Indemnification
Agreement, or (b) made in reliance upon and in conformity with the Underwriter
Information.
(d) The
Underwriter agrees to indemnify and hold harmless the Company, its officers
who
signed the applicable Registration Statement or any amendment thereof, its
directors, and each person who controls the Company within the meaning of either
the Act or the Exchange Act against any and all losses, claims, damages or
liabilities (or actions in respect thereof) to which they may become subject,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (A) the Underwriter’s failure to comply
with Section 4(ii)(b) of this Agreement or (B) any untrue statement or alleged
untrue statement of any material fact contained in (i) the Derived Information
and (ii) the Registration Statement, the Preliminary Prospectus, the Prospectus,
or any amendment or supplement thereto, or arise out of, or are based upon,
the
omission or the alleged omission to state therein a material fact required
to be
stated in clause (b)(B)(i) or (ii) above or necessary to make the statements
made therein not misleading, but with respect to clause (b)(B)(ii) above, only
to the extent that such untrue statement or alleged untrue statement or omission
or alleged omission was made in reliance upon and in conformity with the
Underwriter Information; provided, however, that any such omission or alleged
omission relating to the Derived Information shall be determined by reading
such
Derived Information in conjunction with the Preliminary Prospectus or the
Prospectus, as applicable, as an integral document and in light of the
circumstances under which such statements in such Derived Information and
Prospectus were made. This indemnity agreement will be in addition to any
liability which the Underwriter may otherwise have.
(e) 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 Underwriter 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
Underwriter, 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
Underwriter on the other from the offering of the Offered Certificates but
also
the relative fault of the Company on the one hand and the Underwriter 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 benefits received by the Company on the one hand
and the Underwriter on the other shall be in such proportion so that the
Underwriter is responsible for an amount equal to the amount of the loss
multiplied by a fraction, the numerator of which is the Spread and the
denominator of which is the aggregate principal balance of the Offered
Certificates as set forth on the Prospectus Supplement and the Company is
responsible for the balance. The relative benefits received by the Underwriter
shall be the Spread. The relative fault of the Company on the one hand and
of
the Underwriter on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact
relates to information supplied by the Company or by the Underwriter, and the
parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission; provided, however, that no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of
the 0000 Xxx) 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 the Underwriter within the meaning of Section
15 of
the 1933 Act shall have the same rights to contribution as such Underwriter,
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. “Spread” means the sum of the following with
respect to each class of Offered Certificates: the product of (a) the aggregate
principal amount of that class of Offered Certificates and (b) the aggregate
difference between the price to the public of that class of Offered Certificates
and the purchase price of such class as set forth on Schedule A.
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 the Underwriter or controlling person,
or
by or on behalf of the Company, and shall survive delivery of the Offered
Certificates to the Underwriter.
SECTION
9. Termination
of Agreement.
(i)
The
Underwriter 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 Underwriter,
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.
(ii) 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 Underwriter shall be directed to UBS
Securities LLC at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxx Xxxxxx, Esq.; 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 either party, such other address as may hereafter
be
furnished by such party to the other in writing.
SECTION
11. Parties.
This
Agreement shall inure to the benefit of and be binding upon the Underwriter
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 Underwriter 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 Underwriter 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 Underwriter 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]
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 Underwriter
and the Company in accordance with its terms.
|
Very
truly yours,
|
|
|
MORTGAGE
ASSET SECURITIZATION TRANSACTIONS, INC.
|
|
|
By: ____________________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
By: ____________________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
CONFIRMED
AND ACCEPTED,
|
|
|
as
of the date first above written:
|
|
|
UBS
SECURITIES LLC
|
|
|
By: ________________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
By: ________________________________________
|
|
|
Name:
|
|
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Title:
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SCHEDULE
A
|
Class
of Certificates Purchased
|
Aggregate
Principal Amount of such Class to be Purchased
|
Purchase
Price as a percentage of the Aggregate Principal Amount of such Class
to
be Purchased
|
Price
to Public as a percentage of the Aggregate Principal Amount of such
Class
to be Purchased
|
|
|
UBS
SECURITIES LLC
|
||||
|
Class
A-1
|
$
|
269,613,000
|
99.7500%
|
100.0000%
|
|
Class
A-2
|
$
|
190,000,000
|
99.7500%
|
100.0000%
|
|
Class
A-3
|
$
|
46,000,000
|
99.7500%
|
100.0000%
|
|
Class
A-4
|
$
|
83,000,000
|
99.7500%
|
100.0000%
|
|
Class
M-1
|
$
|
30,819,000
|
99.7500%
|
100.0000%
|
|
Class
M-2
|
$
|
26,432,000
|
99.7500%
|
100.0000%
|
|
Class
M-3
|
$
|
23,367,000
|
99.7500%
|
100.0000%
|
|
Class
M-4
|
$
|
13,791,000
|
99.7500%
|
100.0000%
|
|
Class
M-5
|
$
|
12,641,000
|
99.7500%
|
100.0000%
|
|
Class
M-6
|
$
|
12,258,000
|
99.7500%
|
100.0000%
|
|
Class
M-7
|
$
|
11,109,000
|
99.7500%
|
100.0000%
|
|
Class
M-8
|
$
|
10,726,000
|
99.7500%
|
100.0000%
|
|
Class
M-9
|
$
|
9,193,000
|
99.7500%
|
100.0000%
|
EXHIBIT
A
UNDERWRITER’S
INFORMATION
The
MASTR
Asset Backed Securities Trust 2006-WMC2 is issuing nineteen classes of
certificates, but is offering only fourteen classes through this prospectus
supplement.
Neither
the SEC nor any state securities commission has approved the offered
certificates or determined that this prospectus supplement or the accompanying
prospectus is accurate or complete. Any representation to the contrary is a
criminal offense.
We
will
not list the offered certificates on any national securities exchange or on
any
automated quotation system of any registered securities association such as
NASDAQ.
The
underwriter, UBS Securities LLC, will purchase the offered certificates from
Mortgage Asset Securitization Transactions, Inc. UBS Securities LLC expects
to
deliver the offered certificates in book entry form through the facilities
of
The Depository Trust Company, and upon request, through the facilities of
Clearstream Banking Luxembourg and the Euroclear System, to purchasers on or
about June 29, 2006.
The
proceeds to the depositor are expected to be approximately
$743,215,305 before
deducting expenses.
See
“Underwriting” in this prospectus supplement. UBS Securities LLC will sell the
offered certificates from time to time in negotiated transactions at varying
prices determined at the time of sale.
USE
OF
PROCEEDS
The
depositor will apply the net proceeds of the sale of the offered certificates
to
the purchase of the Mortgage Loans transferred to the trust.
UNDERWRITING
Subject
to the terms and conditions set forth in the Underwriting Agreement, dated
the
date hereof (the “Underwriting Agreement”), the Depositor has agreed to sell,
and the underwriter has agreed to purchase, the offered certificates.
Distribution
of the offered certificates will be made from time to time in negotiated
transactions or otherwise at varying prices to be determined at the time of
sale. Proceeds
to the depositor from the sale of the offered certificates, before deducting
expenses payable by the depositor, will be approximately $743,215,305. In
connection with the purchase and sale of the offered certificates, the
underwriter may be deemed to have received compensation from the depositor
in
the form of underwriting discounts.
The
offered certificates are offered subject to receipt and acceptance by the
underwriter, to prior sale and to the underwriter’s right to reject any order in
whole or in part and to withdraw, cancel or modify the offer without notice.
It
is expected that delivery of the offered certificates will be made through
the
facilities of DTC, Clearstream and the Euroclear System on or about the closing
date. The offered certificates will be offered in Europe and the United States
of America.
The
underwriting agreement provides that the depositor will indemnify the
underwriter against certain civil liabilities, including liabilities under
the
Securities Act of 1933, as amended, or will contribute to payments the
underwriter may be required to make in respect thereof.
EXHIBIT
B
European
Economic Area
In
relation to each Member State of the European Economic Area which has
implemented the Prospectus Directive (each, a Relevant
Member State),
the
Underwriter has represented and agreed that with effect from and including
the
date on which the Prospectus Directive is implemented in that Relevant Member
State (the Relevant
Implementation Date)
it has
not made and will not make an offer of certificates to the public in that
Relevant Member State prior to the publication of a prospectus in relation
to
the certificates which has been approved by the competent authority in that
Relevant Member State or, where appropriate, approved in another Relevant Member
State and notified to the competent authority in that Relevant Member State,
all
in accordance with the Prospectus Directive, except that it may, with effect
from and including the Relevant Implementation Date, make an offer of
certificates to the public in that Relevant Member State at any
time:
|
(a)
|
to
legal entities which are authorised or regulated to operate in the
financial markets or, if not so authorised or regulated, whose corporate
purpose is solely to invest in securities;
|
|
(b)
|
to
any legal entity which has two or more of (1) an average of at least
250
employees during the last financial year; (2) a total balance sheet
of
more than €43,000,000 and (3) an annual net turnover of more than
€50,000,000, as shown in its last annual or consolidated accounts;
or
|
|
(c)
|
in
any other circumstances which do not require the publication by the
Issuer
of a prospectus pursuant to Article 3 of the Prospectus
Directive.
|
For
the
purposes of this provision, the expression an “offer of certificates to the
public” in relation to any certificates in any Relevant Member State means the
communication in any form and by any means of sufficient information on the
terms of the offer and the certificates to be offered so as to enable an
investor to decide to purchase or subscribe the certificates, as the same may
be
varied in that Member State by any measure implementing the Prospectus Directive
in that Member State and the expression Prospectus
Directive means
Directive 2003/71/EC and includes any relevant implementing measure in each
Relevant Member State.
United
Kingdom
The
Underwriter has represented and agreed that:
|
(a)
|
it
has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement
to
engage in investment activity (within the meaning of Section 21 of
the
Financial Services and Markets Act) received by it in connection
with the
issue or sale of the certificates in circumstances in which Section
21(1)
of the Financial Services and Markets Act does not apply to the Issuer;
and
|
|
(b)
|
it
has complied and will comply with all applicable provisions of the
Financial Services and Markets Act with respect to anything done
by it in
relation to the certificates in, from or otherwise involving the
United
Kingdom.
|
