BNP Paribas Securities
Corp.
UNDERWRITING AGREEMENT
$598,789,000
(Approximate)
TBW Mortgage-Backed Trust Series
2006-5,
Mortgage-Backed Pass-Through
Certificates, Series 2006-5
BNP Paribas
Securities Corp.
as
Representative of the several Underwriters
BNP Paribas Mortgage Securities LLC, a limited
liability company organized and existing under the laws of the
State of Delaware (the “Depositor”), proposes to sell
to the several underwriters named in Schedule I attached hereto
(the “Underwriters”), for whom you are acting as
representative (also referred to herein as the
“Representative”), the respective amounts set forth
opposite their names in Schedule I attached hereto of the
Depositor’s TBW Mortgage-Backed Trust Series 2006-5,
Mortgage-Backed Pass-Through Certificates, Series 2006-5. Such
classes have been designated as the Class A-1, Class A-2-A, Class
A-2-B, Class A-3, Class A-4, Class A-5-A, Class A-5-B, Class A-6,
Class M-1, Class M-2, Class M-3, Class M-4, Class M-5, Class M-6
and Class M-7 Certificates (collectively, the
“Certificates”). The Certificates, together with the
Depositor’s TBW Mortgage-Backed Trust Series 2006-5,
Mortgage-Backed Pass-Through Certificates, Series 2006-5, Class C,
Class P and Class R Certificates, will represent the entire
beneficial ownership interest in a trust fund (the “Trust
Fund”) consisting of a pool of conventional, primarily fixed
rate, one-to-four family, first lien residential mortgage loans
(the “Mortgage Loans”) having an aggregate principal
balance of approximately $ 598,789,446.48 as of October 1, 2006 (the
“Cut-off Date”). The Mortgage Loans identified on the
Mortgage Loan Schedule were originated or acquired by various
mortgage loan originators and sold to BNP Paribas Mortgage Corp.
(“Seller”), an affiliate of the Depositor, pursuant to
one or more mortgage loan purchase agreements. These Mortgage Loans
were subsequently sold to the Depositor pursuant to a Mortgage Loan
Purchase Agreement between the Depositor and the Seller, dated as
of October 26, 2006 (the “MLPA”).
The Certificates are to be issued pursuant to a
Pooling and Servicing Agreement to be dated as of October 1, 2006
(the “Pooling Agreement”) among the Depositor, U.S.
Bank National Association, as trustee (the “Trustee”)
and Wells Fargo Bank, N.A. as master servicer (in such capacity,
the “Master Servicer”) and securities administrator (in
such capacity, the “Securities Administrator”). The
Mortgage Loans will be transferred to the Trust Fund pursuant to
the Pooling Agreement.
Capitalized
terms used herein but not defined herein shall have the meanings
provided in the Pooling Agreement.
1.
Representations and
Warranties . The
Depositor represents and warrants to and agrees with each
Underwriter that:
(a)
The Depositor has filed with the
Securities and Exchange Commission (the “Commission”) a
registration statement (including a prospectus) on Form S-3 (No.
333-131690) for the registration under the Securities Act of 1933,
as amended (the “Act”), of mortgage pass-through
certificates issuable in series. Such registration statement has
been declared effective by the Commission under the Act. Such
registration statement, including exhibits thereto and any
information incorporated therein by reference, as amended to the
date of this Agreement, is hereinafter called the
“Registration Statement,” and such prospectus, in the
form in which it was last filed with the Commission, as
supplemented by a prospectus supplement relating to the
Certificates to be filed pursuant to Rule 424 under the Act (such
prospectus supplement in the form first filed after the date hereof
pursuant to Rule 424 hereinafter called the “Prospectus
Supplement”), and any information incorporated therein by
reference, is hereinafter collectively referred to as the
“Prospectus.” The Depositor further proposes to
prepare, after the final terms of all classes of the Certificates
have been established, a Free Writing Prospectus that will contain
substantially all information that will appear in the Prospectus
Supplement, to the extent that such information is known at that
time and minus specific sections including the Method of
Distribution section (such Free Writing Prospectus, together with
the Basic Prospectus, the “Definitive Free Writing
Prospectus”). The Definitive Free Writing Prospectus must be
provided to each investor prior to the time of Contract of Sale (as
defined herein).
(b)
The Registration Statement, at the
time it became effective (the “Effective Date”), and
the prospectus contained therein, and any amendments thereof and
supplements thereto filed prior to the date hereof, conformed in
all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder; and on the date of
this Agreement and on the Closing Date (as hereinafter defined),
the Registration Statement and the Prospectus, and any amendments
thereof and supplements thereto, will conform in all material
respects to the requirements of the Act and the rules and
regulations of the Commission thereunder. The Registration
Statement, at the time it became effective, did not contain an
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; and the Prospectus and
Designated Static Pool Information (as defined herein), taken
together, as of the date the Registration Statement became
effective, as of its date and as of the date hereof, did not
contain an untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; provided, however, that the Depositor makes no
representations or warranties as to either (i) any information
contained in or omitted from the portions of the Prospectus set
forth under the caption “Method of Distribution”
relating to the Certificates and the stabilization legend required
by Item 502(d)(1) under Regulation S-K of the Act (the
“Underwriter Information”) or (ii) any decrement or
yield tables set forth in the section titled “Yield on the
Certificates” in the Prospectus Supplement (the
“Decrement/Yield Tables”). In addition, the Definitive
Free Writing Prospectus, as of the date thereof and as of the
Closing Date, did not and will not contain an untrue statement of a
material fact and did not and will not 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. The effective date shall mean the earlier of the date
by which the Prospectus Supplement is first used and the time of
the first Contract of Sale to which such Prospectus Supplement
relates. “Designated Static Pool Information” shall
mean the static pool information referred to in the Prospectus
under the caption “Static Pool Information” but deemed
to be excluded from the Registration Statement and Prospectus
pursuant to Item 1105(d) of Regulation AB.
(c)
The Certificates will conform to
the description thereof contained in the Prospectus and the
Certificates will on the Closing Date be duly and validly
authorized; and, when validly executed, authenticated, issued and
delivered in accordance with the Pooling Agreement, the
Certificates will be validly issued and outstanding and entitled to
the benefits of the Pooling Agreement.
(d)
The Depositor has been duly
incorporated and is validly existing as a limited liability company
in good standing under the laws of the State of Delaware, with
organizational power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this
Agreement, the MLPA and the Pooling Agreement.
(e)
At or prior to the Closing Date,
the Depositor will have entered into the MLPA with respect to the
sale of the Mortgage Loans to the Depositor by the Seller and,
assuming the due authorization, execution and delivery thereof by
the other parties thereto, the MLPA on the Closing Date will
constitute a valid and binding agreement of the Depositor,
enforceable in accordance with its terms, except as may be limited
by bankruptcy, insolvency, reorganization or other laws relating to
or affecting the enforcement of creditors’ rights and by
general equity principles.
(f)
At or prior to the Closing Date,
the Depositor will have entered into the Pooling Agreement with
respect to the Certificates, and assuming the due authorization,
execution and delivery thereof by the other parties thereto, the
Pooling Agreement on the Closing Date will constitute a valid and
binding agreement of the Depositor enforceable in accordance with
its terms, except as may be limited by bankruptcy, insolvency,
reorganization or other laws relating to or affecting the
enforcement of creditors’ rights and by general equity
principles.
(g)
Neither the issuance or sale of the
Certificates nor the consummation of any other of the transactions
herein contemplated, nor the fulfillment of the terms hereof, will
conflict with or violate any term or provision of the certificate
of formation or limited liability company agreement of the
Depositor or any statute, order or regulation applicable to the
Depositor of any court, regulatory body, administrative agency or
governmental body having jurisdiction over the Depositor, and will
not conflict with, result in a breach or violation or the
acceleration of, or constitute a default under, the terms of any
indenture or other agreement or instrument to which the Depositor
is a party or by which it is bound.
(h)
This Agreement has been duly
authorized, executed and delivered by the Depositor.
(i)
No consent, approval, authorization
or order of any court or governmental authority or agency is
required for the consummation by the Depositor of the transactions
contemplated by this Agreement, except such as may be required
under the Act, the Rules and Regulations or state securities or
Blue Sky laws or have previously been obtained.
(j)
Immediately prior to the transfer
of the Mortgage Loans to the Trustee as contemplated by the Pooling
Agreement, the Depositor (i) will have good title to, and will be
the sole owner of, the Mortgage Loans being transferred by it to
the Trustee pursuant thereto, free and clear of any lien, pledge,
encumbrance or other security interest (collectively,
“Liens”), (ii) will not have assigned to any person any
of its right, title or interest in such Mortgage Loans or in the
Pooling Agreement, and (iii) will have the power and authority to
sell such Mortgage Loans to the Trustee, and upon the execution and
delivery of the Pooling Agreement by the Trustee, the Trustee will
have acquired all of the Depositor’s right, title and
interest in and to the Mortgage Loans, and upon delivery to the
Underwriters of the Certificates and payment by the Underwriters
upon receipt of the Certificates purchased by such Underwriter, the
Underwriters will have title to Certificates free of
Liens.
(k)
Neither the Depositor nor the Trust
created by the Pooling Agreement is an “investment
company” within the meaning of such term under the Investment
Company Act of 1940, as amended (the “1940 Act”) and
the rules and regulations of the Commission thereunder.
(1)
Any taxes, fees and other
governmental charges in connection with the execution and delivery
of this Agreement and the Pooling Agreement and the execution,
issuance, delivery and sale of the Certificates which have become
due or will be due on or prior to the Closing Date, shall have been
or will be paid on or prior to the Closing Date.
(m)
The Depositor is not, as of the
date upon which it delivers the Definitive Free Writing Prospectus,
an Ineligible Issuer, as such term is defined in Rule 405 of the
1933 Act Regulations.
(n)
The Depositor shall comply with all
applicable laws and regulations in connection with the use of Free
Writing Prospectuses, including but not limited to Rules 164 and
433 of the 1933 Act Regulations and all Commission guidance
relating to Free Writing Prospectuses, including but not limited to
Commission Release No. 33-8591.
(o)
There are no legal proceedings
pending, or known to be contemplated by governmental authorities,
against the Depositor that could be material to investors in the
Certificates issued under the Pooling and Servicing
Agreement.
2.
Purchase and Sale
. Subject to the terms and
conditions and in reliance upon the representations and warranties
herein set forth, the Depositor agrees to sell to each Underwriter,
and each Underwriter agrees, severally and not jointly, to purchase
from the Depositor, the Certificates set forth opposite its name in
Schedule I hereto at the purchase price set forth in Schedule I
hereto.
3.
Delivery and Payment
. Delivery of and payment for the
Certificates shall be made at 9:00 a.m. EST on October 26, 2006
which date and time may be postponed by agreement between the
Representative and the Depositor (such date and time being herein
called the “Closing Date”). The Certificates will be
delivered in book-entry form through the facilities of The
Depository Trust Company. Delivery of the Certificates shall be
made to the Underwriters against payment by the Underwriters of the
purchase price therefor to or upon the order of the Depositor by
certified or official bank check or checks payable in federal or
other immediately available funds. The Certificates shall be
registered in such names and in such denominations as BNP Paribas
Securities Corp. may request not less than three full business days
in advance of the Closing Date.
The Depositor
agrees to notify each Underwriter at least two business days before
the Closing Date of the exact principal balance evidenced by the
Certificates and to have the Certificates available for inspection,
checking and packaging in New York, New York, no later than 12:00
noon on the business day prior to the Closing Date.
4.
Offering by
Underwriters .
(a)
It is understood that each
Underwriter proposes to offer and/or solicit offers for the
Certificates to be purchased by it for sale to the public as set
forth in the Prospectus and each Underwriter agrees that all such
offers, solicitations and sales by it shall be made in compliance
with all applicable laws and regulations. Prior to the date hereof,
each Underwriter has not offered, pledged, sold, disposed of or
otherwise transferred any Certificate or any security backed by the
Mortgage Loans, any interest in any Certificate or such security or
any Mortgage Loan.
(b)
It is understood that each
Underwriter will solicit offers to purchase the Certificates as
follows:
(1) Prior to the time such Underwriter have
received the Definitive Free Writing Prospectus each Underwriter
may, in compliance with the provisions of this Agreement, solicit
offers to purchase Certificates; provided, that such Underwriter
shall not accept any such offer to purchase a Certificate or any
interest in any Certificate or Mortgage Loan or otherwise enter
into any Contract of Sale for any Certificate, any interest in any
Certificate or any Mortgage Loan prior to the investor’s
receipt of Definitive Free Writing Prospectus.
(2) Any Free Writing Prospectus (other than the
Definitive Free Writing Prospectus) relating to the Certificates
used by an Underwriter in compliance with the terms of this
Agreement prior to the time such Underwriter has entered into a
Contract of Sale for Certificates shall prominently set forth
substantially the following statement:
The information
in this free writing prospectus is preliminary and is subject to
completion or change. The information in this free writing
prospectus, if conveyed prior to the time of your commitment to
purchase, supersedes information contained in any prior similar
free writing prospectus relating to these securities. This free
writing prospectus is not an offer to sell or a solicitation of an
offer to buy these securities in any state where such offer,
solicitation or sale is not permitted. This free writing prospectus
is being delivered to you solely to provide you with information
about the offering of the securities referred to in this free
writing prospectus and to solicit an indication of interest in
purchasing such securities, when, as and if issued. Any such
indication will not constitute a contractual commitment by you to
purchase any of the securities until the offering has been priced
and we have advised you of and confirmed the allocation of
securities to be made to you.
“Written
Communication” has the same meaning as that term is defined
in Rule 405 of the 1933 Act Regulations.
(3) Any Free Writing Prospectus relating to
Certificates and used by an Underwriter in connection with
marketing the Certificates, including the Definitive Free Writing
Prospectus, shall prominently set forth substantially the following
statement:
The issuer is
not obligated to issue such security or any similar security and
the underwriter’s obligation to deliver such security is
subject to the terms and conditions of the underwriting agreement
with the issuer and the availability of such security when, as and
if issued by the issuer. You are advised that the terms of the
securities, and the characteristics of the mortgage loan pool
backing them, may change (due, among other things, to the
possibility that mortgage loans that comprise the pool may become
delinquent or defaulted or may be removed or replaced and that
similar or different mortgage loans may be added to the pool, and
that one or more classes of securities may be split, combined or
eliminated), at any time prior to issuance or availability of a
final prospectus. You are advised that securities may not be issued
that have the characteristics described in these materials. The
underwriter’s obligation to sell such securities to you is
conditioned on the mortgage loans and securities having the
characteristics described in these materials. If for any reason the
issuer does not deliver such securities, the underwriter will
notify you, and neither the issuer nor any underwriter will have
any obligation to you to deliver all or any portion of the
securities which you have committed to purchase, and none of the
issuer nor any underwriter will be liable for any costs or damages
whatsoever arising from or related to such non-delivery.
(c)
It is understood that each
Underwriter will not enter into a Contract of Sale with any
investor until the Definitive Free Writing Prospectus has been
conveyed to the investor. For purposes of this Agreement, Contract
of Sale has the same meaning as in Rule 159 of the 1933 Act
Regulations and all Commission guidance relating to Rule 159. The
Definitive Free Writing Prospectus shall prominently set forth
substantially the following statement:
The information
in this free writing prospectus, if conveyed prior to the time of
your commitment to purchase, supersedes information contained in
any prior similar free writing prospectus relating to these
securities.
(d)
It is understood that each
Underwriter may prepare and provide to prospective investors
certain Free Writing Prospectuses (as defined below), subject to
the following conditions:
(1) Unless preceded or accompanied by a prospectus
satisfying the requirements of Section 10(a) of the Act, an
Underwriter shall not convey or deliver any Written Communication
to any person in connection with the initial offering of the
Certificates, unless such Written Communication either (i) is made
in reliance on Rule 134 under the Act, (ii) constitutes a
prospectus satisfying the requirements of Rule 430B under the Act,
(iii) is the Definitive Free Writing Prospectus, or (iv) both (1)
constitutes a Free Writing Prospectus (as defined below) used in
reliance on Rule 164 and (2) includes only information that is
within the definition of ABS Informational and Computational
Materials as defined in Item 1100 of Regulation AB, or Permitted
Additional Materials.
(2) The Underwriter shall comply with all
applicable laws and regulations in connection with the use of Free
Writing Prospectuses, including but not limited to Rules 164 and
433 of the 1933 Act Regulations and all Commission guidance
relating to Free Writing Prospectuses, including but not limited to
Commission Release No. 33-8591.
(3) For purposes hereof, “Free Writing
Prospectus” shall have the meaning given such term in Rules
405 and 433 of the 1933 Act Regulations. “Issuer
Information” shall mean information included in a Free
Writing Prospectus that both (i) is within the types of information
specified in clauses (1) to (5) of footnote 271 of Commission
Release No. 33-8591 (Securities Offering Reform) as shown in
Exhibit C hereto and (ii) has been either prepared by, or has been
reviewed and approved by, the Depositor. “Underwriter Derived
Information” shall refer to information of the type described
in clause (5) of such footnote 271 when prepared by an Underwriter.
“Permitted Additional Materials” shall mean information
that is not ABS Informational and Computational Materials and (x)
that are referred to in Section 4(d)(12)), (y) that constitute
Certificate price, yield, weighted average life, subscription or
allocation information, or a trade confirmation, or (z) otherwise
with respect to which the Depositor has provided written consent to
an Underwriter to include in a Free Writing Prospectus. As used
herein with respect to any Free Writing Prospectus, “Pool
Information” means the information with respect to the
characteristics of the Mortgage Loans and administrative and
servicing fees, as provided by or on behalf of the Depositor to an
Underwriter at the time most recent to the date of such Free
Writing Prospectus.
(4) All Free Writing Prospectuses provided to
prospective investors, whether or not filed with the Commission,
shall bear a legend including substantially the following
statement:
The
issuing entity has filed a registration statement (including a
prospectus) with the SEC for the offering to which this free
writing prospectus relates. Before you invest, you should read the
base prospectus in that registration statement and other documents
the issuing entity has filed with the SEC for more complete
information about the issuing entity and this offering. You may get
these documents for free by visiting EDGAR on the SEC Web site
at www.sec.gov . Alternatively, the issuing entity, any
underwriter or any dealer participating in the offering will
arrange to send you the base prospectus if you request it by
calling toll-free 1-866-803-9204.
The Depositor
shall have the right to require additional specific legends or
notations to appear on any Free Writing Prospectus, the right to
require changes regarding the use of terminology and the right to
determine the types of information appearing therein with the
approval of each Underwriter (which shall not be unreasonably
withheld).
(5) Each Underwriter shall deliver to the Depositor
and its counsel (in such format as required by the Depositor) prior
to the proposed date of first use thereof, (i) any Free Writing
Prospectus prepared by or on behalf of such Underwriter that
contains any information that, if reviewed and approved by the
Depositor, would be Issuer Information, and (ii) any Free Writing
Prospectus or portion thereof prepared by such Underwriter that
contains only a description of the final terms of the Certificates
after such terms have been established for all classes of
Certificates being publicly offered. No information in any Free
Writing Prospectus (other than the Definitive Free Writing
Prospectus) shall consist of information of a type that is not
included within the definition of ABS Informational and
Computational Materials, or is not Permitted Additional Materials.
To facilitate filing to the extent required by Section 5(b) or
4(f), as applicable, all Underwriter Derived Information shall be
set forth in a document separate from the document including Issuer
Information. All Free Writing Prospectuses described in this
subsection (5) must be approved by the Depositor before any
Underwriter provides the Free Writing Prospectus to investors
pursuant to the terms of this Agreement. Notwithstanding the
foregoing, each Underwriter shall not be required to deliver any
Free Writing Prospectus to the extent that it does not contain
substantive changes from or additions to any Free Writing
Prospectus previously approved by the Depositor.
(6) BNP Paribas Securities Corp. shall provide the
Depositor with a letter from Ernst & Young LLP, certified
public accountants, prior to the Closing Date, with respect to any
Free Writing Prospectus provided by that Underwriter to the
Depositor under Section 4(d)(5), satisfactory in form and substance
to the Depositor and their counsel and that Underwriter, to the
effect that such accountants have performed certain specified
procedures, all of which have been agreed to by the Depositor and
that Underwriter, as a result of which they determined that all
accounting, financial or statistical information that is included
in such Free Writing Prospectus, is accurate except as to such
matters that are not deemed by the Depositor and that Underwriter
to be material. The foregoing letter shall be at the expense of the
such Underwriter.
(7) None of the information in
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