EXHIBIT 1
BCAP LLC
$1,459,470,985
(Approximate)
BCAP LLC Trust 2007-AA2
Mortgage Pass-Through Certificates, Series 2007-AA2
UNDERWRITING AGREEMENT
March 28, 2007
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 2007-AA2 Mortgage Pass-Through Certificates, Series 2007-AA2 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 March 1, 2007 (the "Trust
Agreement"), among the Company, as depositor, Xxxxx Fargo Bank, National
Association, as custodian (the "Custodian") and Deutsche Bank National Trust
Company, as trustee (the "Trustee"). In addition to the Offered Certificates,
the Company will authorize for issuance the Mortgage Pass-Through Certificates,
Series 2007-AA2, Class I-R and Class I-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 fixed rate and
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. 333-140720) 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 March 28, 2007 (the "Prospectus Supplement"), to
the prospectus, dated March 14, 2007, included in such registration statement,
relating to the Offered Certificates and the method of distribution thereof.
Such registration statement on Form S-3, including exhibits thereto 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 BCAP
LLC Trust 2007-AA2 Free Writing Prospectus dated March 22, 2007, the BCAP LLC
Trust 2007-AA2 Supplemental Term Sheet dated March 27, 2007 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 March 29, 2007, which date and
time may be postponed by agreement between you and the Company (such time and
date of payment and delivery being herein called the "Closing Date"). Payment
shall be made to the Company, 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 Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Director
SCHEDULE A
Aggregate
Principal Amount of
Certificates to be
Class Purchased by Underwriter
-------------------- --------------------------
Group I Offered
Certificates
I-2-A-1 519,568,000.00
I-2-A-2 57,730,000.00
I-M-1 14,527,000.00
I-M-2 9,146,000.00
I-M-3 5,380,000.00
I-M-4 5,380,000.00
I-M-5 5,380,000.00
I-M-6 5,380,000.00
I-M-7 4,842,000.00
I-M-8 5,380,000.00
Group II Offered
Certificates
II-1-A-1 $ 50,193,000
II-1-A-2 $ 54,315,833
II-1-A-3 $ 10,863,167
II-1-A-4 $ 25,000
II-1-A-5 $ 26,160,000
II-1-A-6 $ 25,000
II-1-A-7 $ 65,598,000
II-1-A-8 $ 30,378,000
II-1-A-9 $ 2,819,250
II-1-A-10 $ 2,064,000
II-1-A-11 $ 50,000,000
II-1-A-12 $ 43,940,000
II-1-A-13 $ 4,725,000
II-1-A-14 $ 15,568,916
II-1-A-15 $ 25,000
II-1-PO $ 4,725,960
II-1-IO $ 169,541,140
II-AR $ 100
II-2-A-1 $ 29,449,900
II-2-PO $ 674,025
II-2-IO $ 9,764,050
II-M-1 $ 8,530,000
II-B-1 $ 5,555,000
II-B-2 $ 3,174,000
II-B-3 $ 1,984,000
II-B-4 $ 1,190,000
II-B-5 $ 3,174,478
SCHEDULE B
Other Free Writing Prospectuses
None.
