Exhibit 1
BCAP LLC
$289,652,000
(Approximate)
BCAP LLC Trust 2006-AA1
Mortgage Pass-Through Certificates, Series 2006-AA1
UNDERWRITING AGREEMENT
August 30, 2006
Barclays Capital Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
BCAP LLC, a Delaware limited liability company (the "Company"),
proposes to sell to you, Barclays Capital Inc. (the "Underwriter"), BCAP LLC
Trust 2006-AA1 Mortgage Pass-Through Certificates, Series 2006-AA1 in the
original principal amount and with the designation described on Schedule A
attached hereto (the "Offered Certificates"). The Offered Certificates will be
issued pursuant to a Trust Agreement, dated as of August 1, 2006 (the "Trust
Agreement"), among the Company, as depositor and Xxxxx Fargo Bank, National
Association, as trustee (the "Trustee"). In addition to the Offered
Certificates, the Company will authorize for issuance the Mortgage Pass-Through
Certificates, Series 2006-AA1, Class R and Class CE pursuant to the Trust
Agreement (together with the Offered Certificates, the "Certificates"). The
Certificates will represent in the aggregate the entire beneficial ownership
interest in a trust fund (the "Trust Fund") primarily consisting of a pool of
adjustable-rate alternative-A loans (the "Mortgage Loans") secured primarily by
first-lien mortgages or deeds of trust on residential properties.
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-133181) for the
registration of the 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)(2) under the rules
and regulations of the Commission under the Act (the "1933 Act Regulations") a
prospectus supplement, dated August 30, 2006 (the "Prospectus Supplement"), to
the prospectus, dated August 30, 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 and
information that is contained in the Prospectus (as defined below) and is deemed
to be part of and included in such registration statement, as such registration
statement may have been amended or supplemented as of the date of the
Prospectus, is hereinafter referred to as the "Registration Statement"; the
prospectus first required to be filed to satisfy the condition set forth in Rule
172(c) and pursuant to Rule 424(b) under the 1933 Act is hereinafter referred to
as the "Base Prospectus"; the form of supplement to the Base Prospectus relating
to the Offered Certificates, in the form first required to be filed to satisfy
the condition set forth in Rule 172(c) and pursuant to Rule 424(b) under the
1933 Act (including the Base Prospectus as so supplemented) is hereinafter
referred to as the "Prospectus Supplement"; and the Base Prospectus and the
Prospectus Supplement, together, are hereinafter referred to as the
"Prospectus". Capitalized terms not otherwise defined in this Agreement are used
herein as defined in the Trust Agreement.
At or prior to the time when sales investors of the Offered
Certificates were first made (the "Time of Sale"), the Company had prepared the
following information (collectively, the "Time of Sale Information"): the
Company's Collateral Term Sheet, the BCAP LLC Trust 2006-AA1 Free Writing
Prospectus Term Sheet dated August 30, 2006 and any other "free-writing
prospectus" (as defined pursuant to Rule 405 under the Act (as defined herein))
(a "Free Writing Prospectus") listed on Schedule B hereto. If, subsequent to the
date of this Agreement, the Company and the Underwriter determine 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 and terminate their
old purchase contracts and entered into new purchase contracts with investors of
the Offered Certificates, then "Time of Sale Information" will refer to the
information available to purchasers at the time of entry into the first such new
purchase contract, including any information that corrects such material
misstatements or omissions ("Corrective Information") and "Time of Sale" will
refer to the time and date on which such new purchase contracts were entered
into.
Section 1. Representations and Warranties.
(a) The Company represents and warrants to the Underwriter as
follows:
(i) The Registration Statement, as amended as of its effective date
or deemed effective date pursuant to Rule 430B under the 1933 Act 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 any 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 (as defined herein) 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
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 in the last paragraph of the cover of the
Prospectus Supplement and under the caption "Underwriting" in the Prospectus
Supplement (other than the third and fourth full paragraphs under such
caption) 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, Prospectus or the Time of Sale
Information (such statements being collectively referred to as "Underwriter
Statements").
(ii) Since the respective dates as of which information is given in
the Registration Statement, Prospectus and Time of Sale Information, 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, in either case which would
materially and adversely affect the Company's ability to perform its
obligations under this Agreement or the Trust Agreement.
(iii) 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 Company makes no representation or
warranty with respect to any statements or omissions made in reliance upon
and in conformity with the Underwriter Statements.
(iv) Other than the Prospectus, the Company (including its agents
and representatives other than the Underwriter in its capacity as such) has
not made, used, prepared, authorized, approved or referred to, and will not
make, use, prepare, authorize, approve or refer to, any "written
communication" (as defined in Rule 405 under the 1933 Act) that constitutes
an offer to sell or solicitation of an offer to buy the Offered Certificates
other than (i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the 1933 Act or Rule 134 under the 1933 Act, (ii) the
Time of Sale Information, and (iii) each other written communication of the
Company or its agents and representatives approved in writing in advance by
the Underwriter or in any other manner mutually agreed by the Underwriter
and the Depositor (each such communication referred to in clause (ii) and
this clause (iii) constituting an "issuer free writing prospectus", as
defined in Rule 433(h) under the 1933 Act, being referred to herein as an
"Issuer Free Writing Prospectus"). Each such Issuer Free Writing Prospectus
complied or, if used after the date hereof will comply in all material
respects with the 1933 Act, has been filed or will be filed in accordance
with Section 7 (to the extent required thereby) and did not at the Time of
Sale, and at the Closing Date will not, contain any untrue statement of a
material fact or (when read in conjunction with the other Time of Sale
Information) 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 Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon
and in conformity with any Underwriter Statements.
(v) The Company has been duly organized and is validly existing as a
limited liability company in good standing under the laws of the State of
Delaware with 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 this Agreement and the Trust Agreement; and
the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which the failure to be so
qualified would have a material and adverse effect on the Company's ability
to perform its obligations under this Agreement and the Trust Agreement.
(vi) The Company is not in violation of its certificate of formation
or in default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any material 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 this Agreement and the Trust
Agreement 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,
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 certificate of formation of limited
liability company agreement of the Company or any applicable law,
administrative regulation or administrative or court decree.
(vii) 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 materially and adversely affect the
Company's ability to perform its obligations under this Agreement and the
Trust Agreement; all pending legal or governmental proceedings to which the
Company is a party or of which its property or assets are the subject which
are not described in the Registration Statement, including ordinary routine
litigation incidental to its business, are, considered in the aggregate, not
material.
(viii) 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
Mortgages to the Trustee pursuant to the Trust Agreement that have not yet
been completed.
(ix) The Company possesses all material licenses, certificates,
authorities or permits issued by the appropriate state, federal or foreign
regulatory agencies or bodies necessary to perform its obligations under
this Agreement or the Trust Agreement, 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 ability of the Company to perform its
obligations under this Agreement or the Trust Agreement.
(x) Each of this Agreement and the Trust Agreement 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 this Agreement or the Trust
Agreement that purport to provide indemnification from securities law
liabilities.
(xi) At the time of the execution and delivery of the Trust
Agreement, the Company (i) will have good and marketable title to the
Mortgage Loans being transferred by it to the Trust Fund pursuant thereto,
free and clear of any lien, mortgage, pledge, charge, encumbrance, adverse
claim or other security interest (collectively "Liens"), to the extent good
and marketable title to the Mortgage Loans is transferred to the Company,
free and clear of all Liens, by the Purchaser, and (ii) will have the power
and authority to transfer such Mortgage Loans to the Trust Fund, and upon
the Closing Date, the Trust Fund will have acquired ownership of all of the
Company's right, title and interest in and to the related Mortgage Loans.
(xii) At the Closing Date, the Offered Certificates will be rated
not lower than the ratings set forth in the Prospectus Supplement under the
heading "Ratings".
(xiii) Any taxes, fees and other governmental charges in connection
with the execution, delivery and issuance of the Trust Agreement to which it
is a party and the Offered Certificates have been paid or will be paid at or
prior to the Closing Date.
(xiv) The Company was informed, prior to any public announcement of
the issue of the Offered Certificates, of the existence of the Financial
Servicers Authority's informational guidance referred to in MAR 2.3.2R(4) of
the price stabilizing rules made under Section 144(1) of the United
Kingdom's Financial Services and Markets Act 2000 (the "FSMA") and it has
not issued and will not issue, without the prior consent of the Underwriter,
any communication to which MAR 2.3.2R(1) of those rules applies unless that
communication adequately discloses that stabilizing action may take place in
relation to the issue of the Offered Certificates and complies with MAR
2.3.3E of those rules.
(xv) The Company is not, and on the date on which the first bona
fide offer of the Offered Certificates is made (within the meaning of Rule
164(h)(2) under the 1933 Act) will not be, an "ineligible issuer", as
defined in Rule 405 under the 1933 Act.
(b) Any certificate signed by any officer of the Company and
delivered to the Underwriter or the Underwriter's counsel shall be deemed a
representation and warranty by the Company to the Underwriter as to the matters
covered thereby.
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
Barclays Capital Inc. ("Barclays"), 000 Xxxx 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 August 31, 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, in immediately available federal funds wired to
such bank as may be designated by the Company, against delivery of the Offered
Certificates or with respect to payments to be made by Barclays, at the
Company's option, by appropriate notation of an intercompany transfer between
affiliates of Barclays Bank PLC. 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 the Closing Date. The Offered Certificates will
be made available for examination and packaging by you not later than 10:00 A.M.
on the last business day prior to the Closing Date.
Section 4. Covenants of The Company. The Company covenants with
the Underwriter as follows:
(a) The Company will give the Underwriter notice of its intention to
prepare, use, authorize, approve, refer to or file any Issuer Free Writing
Prospectus or to file or prepare any amendment to the Registration Statement 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
424(b) of the 1933 Act Regulations), will furnish the Underwriter with copies of
any such Issuer Free Writing Prospectus, amendment or supplement a reasonable
amount of time prior to such proposed filing or use, as the case may be, and
will not prepare, use, authorize, approve, refer to or file any Issuer Free
Writing Prospectus or file any such amendment or supplement or use any such
prospectus to which you 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. Subject to Section 7, the Company will cause each Issuer Free Writing
Prospectus to be transmitted for filing pursuant to Rule 433(d) under the 1933
Act by means reasonably calculated to result in filing with the Commission
pursuant to said rule.
(c) The Company will furnish to the Underwriter, 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 and each Free Writing 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.
(d) 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 an investor in the Offered Certificates, 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 Underwriter a reasonable number
of copies of such amendment or supplement.
(e) 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.
(f) 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 it 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 by each of them in
distributing the 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 it including the fees
and disbursements of counsel, in connection with the purchase and sale of the
Offered Certificates.
(g) 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.
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, and the
Prospectus Supplement and each Free Writing Prospectus required to be filed by
the Company pursuant to Section 4(b) shall have been filed or transmitted for
filing by means reasonably calculated to result in a filing with the Commission
pursuant to Rule 424(b) under the 1933 Act or Rule 433(d) under the 1933 Act, as
applicable.
(b) At the Closing Date the Underwriter shall have received:
(i) The favorable opinion, dated as of the Closing Date, of Xxx X.
Xxxxxxxx, counsel for the Company, in form and substance satisfactory to the
Underwriter;
(ii) One or more favorable opinions, dated as of the Closing Date,
of Xxxxxxxxxx, Xxxxxxxxxx & Xxxx LLP, counsel for the Company, in form and
substance satisfactory to the Underwriter; and
(iii) One or more accountants' comfort letters relating to the
financial and statistical information in the Time of Sale Information and
the Prospectus, 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 counsel may reasonably
require for the purpose of enabling them to pass upon the issuance and sale of
the Offered 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 Offered
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. The Company and the Underwriter
agree that:
(a) 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:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement,
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 Prospectus, 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 (B) any untrue statement or alleged untrue statement
of a material fact contained in any Issuer Free Writing Prospectus or any
Issuer Information contained in any Underwriter Free Writing Prospectus (as
defined below), or the omission or alleged omission to state a material fact
necessary to make the statements therein (when read in conjunction with the
other Time of Sale Information), in light of the circumstances under which
they were made, not misleading, which was not corrected by Corrective
Information subsequently supplied by the Company to the Underwriter within a
reasonable period of time prior to the Time of Sale, or (iii) any breach of
the representation and warranty in Section 1(a)(xv);
(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
(iii) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by you), 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 as to which the
Underwriter has agreed to indemnify the Company pursuant to Section 6(b).
(b) The Underwriter agrees to indemnify 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 (i) any untrue statements or
alleged untrue statements of a material fact, or omissions or alleged omissions
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, in the
Underwriter Statements and (ii) any untrue statements or alleged untrue
statements of a material fact in any Underwriter Free Writing Prospectus (as
defined herein) or any omission or alleged omission to state in such Underwriter
Free Writing Prospectus a material fact necessary in order to make the
statements therein (when read in conjunction with the Time of Sale Information),
in the light of the circumstances under which they were made, not misleading;
provided, that the Underwriter shall not be obligated to so indemnify or hold
harmless (A) to the extent such loss, liability, claim, damage or expense is
caused by a misstatement or omission resulting from an error or omission in the
Issuer Information which was not corrected by Corrective Information
subsequently supplied by the Company to the Underwriter within a reasonable
period of time prior to the Time of Sale or (B) with respect to information that
is also contained in the Time of Sale Information.
(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 to any indemnified party otherwise than on
account of this indemnity agreement. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to participate therein and, to
the extent that, by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, the
indemnifying party elects to assume the defense thereof, it may participate
(jointly with any other indemnifying party similarly notified) with counsel
satisfactory to such indemnified party; provided, however, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party or parties shall have reasonably
concluded that there may be legal defenses available to it or them and/or other
indemnified parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of such counsel, the indemnifying party shall not be
liable to such indemnified party under this paragraph for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof, unless (i) the indemnified party shall have employed separate
counsel (plus any local counsel) in connection with the assertion of legal
defenses in accordance with the proviso to the immediately preceding sentence,
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action, (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party, or (iv) a conflict or potential conflict exists (based
on advice of counsel to the indemnified party) between the indemnified party and
the indemnifying party (in which case the indemnifying party will not have the
right to direct the defense of such action on behalf of the indemnified party).
Unless it shall assume the defense of any proceeding, the indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party shall indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. If any indemnifying party assumes the defense of any
proceeding, it shall not settle, compromise or consent to the entry of any
judgment with respect thereto if indemnification or contribution could be sought
under this Section 6 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent (i)
includes any unconditional release of each indemnified party from all liability
arising out of such proceeding and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(d) Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
this Section 6 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 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 1933 Act) or willful failure to comply with
Section 7 shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation or failure to comply with Section 7, as the
case may be. 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 the 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. This
indemnity agreement will be in addition to any liability that the Underwriter
may otherwise have. Notwithstanding the provisions of this Section 6, the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total price at which the Offered Certificates underwritten
by it and distributed to the public were sold to the public exceeds the amount
of any damages which the Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
Section 7. Offering by Underwriter; Free Writing Prospectus.
(a) In connection with the offering of the Offered Certificates, the
Underwriter may prepare and provide to prospective investors Free Writing
Prospectuses, or portions thereof, which the Company is required to file with
the Commission in electronic format and will use reasonable efforts to provide
to the Company such Free Writing Prospectuses, or portions thereof, in either
Microsoft Word(R) or Microsoft Excel(R) format and not in a PDF, except to the
extent that the Company, in its sole discretion, waives such requirements,
subject to the following conditions (to which such conditions the Underwriter
agrees):
(i) Unless preceded or accompanied by the Prospectus, the
Underwriter shall not convey or deliver any written communication to any
person in connection with the initial offering of the Offered Certificates,
unless such written communication (1) is made in reliance on Rule 134 under
the 1933 Act, (2) constitutes a prospectus satisfying the requirements of
Rule 430B under the 1933 Act or (3) constitutes Time of Sale Information or
a Free Writing Prospectus that does not constitute Time of Sale Information.
Without the Company's prior written consent, the Underwriter shall not
convey or deliver in connection with the initial offering of the Offered
Certificates any "ABS informational and computational material," as defined
in Item 1101(a) of Regulation AB under the Securities Act ("ABS
Informational and Computational Material"), in reliance upon Rules 167 and
426 under the 1933 Act.
(ii) The Underwriter shall deliver to the Company, no later than two
business days prior to the date of first use thereof or such later date as
may be agreed to by the Company, (a) any Free Writing Prospectus that was
prepared by or on behalf of the Underwriter (an "Underwriter Free Writing
Prospectus") and contains any "issuer information", as defined in Rule
433(h) under the 1933 Act and footnote 271 of the Commission's Securities
Offering Reform Release No. 33-8591 ("Issuer Information"), and (b) any Free
Writing Prospectus or portion thereof that contains only a description of
the final terms of the Offered Certificates. Notwithstanding the foregoing,
any Free Writing Prospectus that contains only ABS Informational and
Computational Materials may be delivered by the Underwriter to the Company
not later than the later of (A) two business days prior to the due date for
filing of the Prospectus pursuant to Rule 424(b) under the 1933 Act or (B)
the date of first use of such Free Writing Prospectus.
(iii) The Underwriter represents and warrants to the Company that
the Free Writing Prospectuses to be furnished to the Company by the
Underwriter pursuant to Section 7(a)(ii) will constitute all Free Writing
Prospectuses of the type described therein that were furnished to
prospective purchasers of Offered Certificates by the Underwriter in
connection with its offer and sale of the Offered Certificates.
(iv) The Underwriter represents and warrants to the Company that
each Free Writing Prospectus required to be provided by it to the Company
pursuant to Section 7(a)(ii) did not as of the Time of Sale, and will not as
of the Closing Date, include any untrue statement of a material fact or omit
any material fact necessary to make the statements contained therein (when
read in conjunction with the Time of Sale Information), in light of the
circumstances under which they were made, not misleading; provided, however,
that the Underwriter makes no representation to the extent such
misstatements or omissions were the result of any inaccurate Issuer
Information, which information was not corrected by Corrective Information
subsequently supplied by the Company to the Underwriter within a reasonable
period of time prior to the Time of Sale.
(v) The Company agrees to file with the Commission the following:
(A) any Issuer Free Writing Prospectus; (B) any Free Writing Prospectus or
portion thereof delivered by the Underwriter to the Company pursuant to
Section 7(a)(ii); and (C) any Free Writing Prospectus for which the Company
or any person acting on its behalf provided, authorized or approved
information that is prepared and published or disseminated by a person
unaffiliated with the Company or any other offering participant that is in
the business of publishing, radio or television broadcasting or otherwise
disseminating communications. Notwithstanding the foregoing, the Company
shall not be required to file (1) Issuer Information contained in any
Underwriter Free Writing Prospectus or Free Writing Prospectus of any other
offering participant other than the Company, if such information is included
or incorporated by reference in a prospectus or Free Writing Prospectus
previously filed with the Commission that relates to the offering of the
Offered Certificates, or (2) any Free Writing Prospectus or portion thereof
that contains a description of the Offered Certificates or the offering of
the Offered Certificates which does not reflect the final terms thereof.
(vi) Any Free Writing Prospectus required to be filed pursuant to
Section 7(a)(v) by the Company shall be filed with the Commission not later
than the date of first use of the Free Writing Prospectus, except that: (A)
any Free Writing Prospectus or portion thereof required to be filed that
contains only the description of the final terms of the Offered Certificates
shall be filed by the Company with the Commission within two days of the
later of the date such final terms have been established for all classes of
Offered Certificates and the date of first use; (B) any Free Writing
Prospectus or portion thereof required to be filed that contains only ABS
Informational and Computational Material shall be filed by the Company with
the Commission not later than the later of the due date for filing the final
Prospectus relating to the Offered Certificates pursuant to Rule 424(b)
under the 1933 Act or two business days after the first use of such Free
Writing Prospectus; and (C) any Free Writing Prospectus required to be filed
pursuant to Section 7(a)(v)(C) shall, if no payment has been made or
consideration has been given by or on behalf of the Company for the Free
Writing Prospectus or its dissemination, be filed by the Company with the
Commission not later than four business days after the Company becomes aware
of the publication, radio or television broadcast or other dissemination of
the Free Writing Prospectus;
(vii) The Underwriter shall file with the Commission any Free
Writing Prospectus that is used or referred to by it and distributed by or
on behalf of the Underwriter in a manner reasonably designed to lead to its
broad, unrestricted dissemination not later than the date of the first use
of such Free Writing Prospectus. Notwithstanding the foregoing, the
Underwriter shall file with the Commission any Free Writing Prospectus for
which the Underwriter or any person acting on its behalf provided,
authorized or approved information that is prepared and published or
disseminated by a person unaffiliated with the Company or any other offering
participant that is in the business of publishing, radio or television
broadcasting or otherwise disseminating written communications and for which
no payment was made or consideration given by or on behalf of the Company or
any other offering participant, not later than four business days after the
Underwriter becomes aware of the publication, radio or television broadcast
or other dissemination of the Free Writing Prospectus.
(viii) Notwithstanding the provisions of Sections 7(a)(v) and
7(a)(vii), neither the Company nor the Underwriter shall be required to file
any Free Writing Prospectus that does not contain substantive changes from
or additions to a Free Writing Prospectus previously filed with the
Commission, and the Underwriter shall not be required to file any Free
Writing Prospectus to the extent that the information contained therein is
included in a prospectus or Free Writing Prospectus previously filed that
relates to the offering of the Offered Certificates.
(ix) The Company and the Underwriter each agree that any Free
Writing Prospectuses prepared by it shall contain the following legend, or a
substantially equivalent legend that complies with Rule 433 of the Act:
The depositor has filed a registration statement (including a
prospectus) with the SEC for the offering to which this
communication relates. Before you invest, you should read the
prospectus in that registration statement and other documents the
depositor has filed with the SEC for more complete information about
the 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 depositor, any underwriter or any dealer participating in the
offering will arrange to send you the prospectus if you request it
by calling toll-free 1-888-227-2275 ext. 2663.
(x)(A) In the event that the Company becomes aware that, as of the
Time of Sale, any Issuer Free Writing Prospectus contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements contained therein (when
read in conjunction with the Time of Sale Information), in light of
the circumstances under which they were made, not misleading (a
"Defective Issuer Free Writing Prospectus"), the Company shall
notify the Underwriter of such untrue statement or omission within
one business day after discovery and the Company shall, if requested
by the Underwriter, prepare and deliver to the Underwriter a Free
Writing Prospectus that corrects the material misstatement or
omission in the Defective Issuer Free Writing Prospectus (such
corrected Issuer Free Writing Prospectus, a "Corrected Issuer Free
Writing Prospectus").
(B) In the event that the Underwriter becomes aware that, as of the
Time of Sale, any Underwriter Free Writing Prospectus delivered to
an investor in any Offered Certificates contained any untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements contained therein (when
read in conjunction with the Time of Sale Information), in light of
the circumstances under which they were made, not misleading
(together with a Defective Issuer Free Writing Prospectus, a
"Defective Free Writing Prospectus"), the Underwriter shall notify
the Company of such untrue statement or omission within one business
day after discovery.
(C) The Underwriter shall, if requested by the Company:
(1) if the Defective Free Writing Prospectus was an
Underwriter Free Writing Prospectus, prepare a Free Writing
Prospectus that corrects the material misstatement in or
omission from the Defective Free Writing Prospectus (together
with a Corrected Issuer Free Writing Prospectus, a "Corrected
Free Writing Prospectus");
(2) deliver the Corrected Free Writing Prospectus to each
investor which received the Defective Free Writing Prospectus
prior to entering into a contract of sale with such investor;
(3) notify such investor in a prominent fashion that the
prior contract of sale with the investor has been terminated,
and of the investor's rights as a result of termination of such
agreement;
(4) provide such investor with an opportunity to
affirmatively agree to purchase the Offered Certificates on the
terms described in the Corrected Free Writing Prospectus; and
(5) comply with any other requirements for reformation of
the original contract of sale with such investor, as described
in Section IV.A.2.c of the Commission's Securities Offering
Reform Release No. 33-8591.
(D) In the event that the Defective Free Writing Prospectus was an
Issuer Free Writing Prospectus, and the Underwriter shall in good
faith incur any costs to an investor in connection with the
reformation of the contract of sale with the investor, the Company
agrees to reimburse the Underwriter for such costs; provided, that
before incurring such costs, the Underwriter first permits the
Company access to the applicable investor and an opportunity to
attempt to mitigate such costs through direct negotiation with such
investor.
(xi) The Underwriter covenants with the Company that after the final
Prospectus is available the Underwriter shall not distribute any written
information concerning the Offered Certificates that contains Issuer
Information to a prospective purchaser of Offered Certificates unless
such information is preceded or accompanied by the final Prospectus.
(b) The Underwriter represents and warrants to, and agrees with, the
Company, that:
(i) 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 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 Offered 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 Offered Certificates to the public in that Relevant
Member State at any time:
(A) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
(B) to any legal entity which has two or more of (1) an average
of at least 250 employees during the last financial year; (2) a
total balance sheet of more than (euro)43,000,000 and (3) an annual
net turnover of more than (euro)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
Offered Certificates to the public" in relation to any Offered
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 Offered Certificates to be offered so as to enable an
investor to decide to purchase or subscribe the Offered 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 the European Commission Directive
2003/71/EC and includes any relevant implementing measure in each
Relevant Member State.
(ii) The Underwriter 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 United Kingdom Financial Services and
Markets Act 2000 (the "FSMA")) received by it in connection with the
issue or sale of the Offered Certificates in circumstances in which
Section 21(1) of the FSMA does not apply to the issuer.
(iii) The Underwriter has complied and will comply with all
applicable provisions of the FSMA with respect to anything done by it in
relation to the Offered Certificates in, from or otherwise involving the
United Kingdom.
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.
(a) The Underwriter may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Date without liability on the
part of the Underwriter to the Company, if, prior to delivery and payment for
the Offered Certificates, (i) 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 on the terms and in the manner contemplated
in the Time of Sale Information and the Prospectus, or (ii) 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.
Section 10. Stabilization. In connection with the issue of the
Offered Certificates, the Underwriter (the "Stabilizing Manager") (or any person
duly appointed acting for the Stabilizing Manager) may over-allot or effect
transactions with a view to supporting the market price of the Offered
Certificates at a level higher than that which might otherwise prevail. However,
there is no obligation on the Stabilizing Manager (or any agent of the
Stabilizing Manager) to do this. Such stabilizing, if commenced, may be
discontinued at any time. Such stabilizing shall be conducted in accordance with
all applicable laws and rules. In conducting such over-allotment or stabilizing,
the Stabilizing Manager shall act as principal and not as agent of the Company.
Any loss or profit sustained as a consequence of any such over-allotment or
stabilizing shall be for the account of the Stabilizing Manager.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and effective only on receipt and shall have been duly given
if mailed via the U.S. Postal Service and a reputable overnight delivery
service, hand delivered, sent by facsimile transmission or another reasonable
and standard form of telecommunication. Notices to Barclays shall be directed to
Barclays Capital Inc. at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Asset Securitization Group, with a copy to the Office of the General Counsel;
and notices to the Company shall be directed to it at BCAP LLC, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, attention: President, with a copy to the Office of the
General Counsel; or, as to any party, such other address as may hereafter be
furnished by such party to the other parties in writing.
Section 12. 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 13. Governing Law; Time; Jurisdiction; Waiver of Objection
to Venue. 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.
Section 14. Execution in Counterparts; Severability; Integration.
This Agreement may be executed in any number of counterparts, each of which
shall for all purposes be deemed to be an original and all of which when taken
together shall constitute but one and the same Agreement. In case any provision
in or obligation under this Agreement shall be invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby. This
Agreement contains the final and complete integration of all prior expressions
by the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof and shall constitute entire Agreement among the parties
hereto with respect to the subject matter hereof, superseding all prior oral or
written understandings.
[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,
BCAP LLC
By: /s/ Xxx Xxxxxxxx
-------------------------------------
Name: Xxx Xxxxxxxx
Title: Managing Director
CONFIRMED AND ACCEPTED,
as of the date first above written:
BARCLAYS CAPITAL INC.
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: Director
SCHEDULE A
Aggregate Purchase Price as a
Principal Amount of percentage of the
Certificates to be Aggregate Principal
Purchased by Amount of Certificates
Class Underwriter to be Purchased
--------------- --------------------- -----------------------
Class A-1 $ 246,815,000 100.00000%
Class A-2 $ 27,424,000 100.00000%
Class M-1 $ 4,217,000 100.00000%
Class M-2 $ 2,472,000 100.00000%
Class M-3 $ 1,309,000 100.00000%
Class M-4 $ 1,018,000 100.00000%
Class M-5 $ 1,018,000 100.00000%
Class M-6 $ 1,018,000 100.00000%
Class M-7 $ 1,018,000 100.00000%
Class M-8 $ 1,163,000 97.94851%
Class M-9 $ 1,163,000 88.24800%
Class M-10 $ 1,017,000 87.46034%
SCHEDULE B
Other Free Writing Prospectuses
None.
