EXHIBIT 1
BCAP LLC
$454,693,434
(Approximate)
BCAP 2006-RR1
Resecuritization Pass-Through Certificates, Series 2006-RR1
UNDERWRITING AGREEMENT
November 29, 2006
Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Ladies and Gentlemen:
BCAP LLC, a Delaware limited liability company (the "Company"),
proposes to sell to you, Barclays Capital Inc. (the "Underwriter"),
BCAP
2006-RR1 Resecuritization Pass-Through Certificates, Series
2006-RR1 in the
original principal amount and with the designation described on
Schedule A
attached hereto (the "Certificates"). The Certificates will be
issued pursuant
to a Trust Agreement, dated as of November 30, 2006 (the "Trust
Agreement"),
among the Company, as depositor and Wells Fargo Bank, National
Association, as
trustee (the "Trustee"). 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 mortgage-backed securities
identified on
Schedule C hereto (the "Deposited Underlying Certificates")
representing
interests in a pool of fully amortizing, one- to four-family, fixed
interest
rate, residential first mortgage loans secured primarily by
first-lien mortgages
or deeds of trust on residential properties. The Trust Fund will be
the
beneficiary of an interest rate corridor agreement dated November
30, 2006 (the
"Corridor Agreement") between the Company, as purchaser, and
Barclays Bank PLC
as corridor provider (the "Corridor Provider"). In exchange for
the
Certificates, the Underwriter proposes to sell to the Company the
Deposited
Underlying Certificates, which it has acquired prior to the date
hereof, and
cash equal to the premium to be paid by the Company, on behalf of
the Trust
Fund, to the Corridor Provider pursuant to the Corridor Agreement
(the "Corridor
Premium Amount").
Upon payment of the purchase price on the Closing Date, the
Underwriter shall be deemed to have transferred, assigned, set over
and
otherwise conveyed to the Company all the right, title and interest
of the
Underwriter in and to the Deposited Underlying Certificates and the
Corridor
Premium Amount. The Company hereby directs the Underwriter, and the
Underwriter
hereby agrees, to deliver to the Trustee on the Closing Date or as
soon as
practicable thereafter all documents, instruments and agreements
required to be
delivered by the Underwriter to the Trustee under the Trust
Agreement and such
other documents, instruments and agreements as the Company or the
Trustee shall
reasonably request in order to transfer the Deposited Underlying
Certificates
and the Corridor Premium Amount to the Trustee.
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 November 29, 2006 (the "Prospectus
Supplement"), to
the prospectus, dated November 28, 2006, included in such
registration
statement, relating to the 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 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 to investors of the
Certificates
were first made (the "Time of Sale"), the Company had prepared the
following
information (collectively, the "Time of Sale Information"): the
Company's Term
Sheet relating to the Class CF Certificates, the Prospectus
Supplement and any
"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 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 "Method of Distribution" 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
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 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 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 Certificates by the
Underwriter and any recordation or registration of the
respective
assignments of the Deposited Underlying Certificates 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
Deposited
Underlying Certificates 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
Deposited
Underlying Certificates is transferred to the Company, free and
clear of
all Liens, by the Underwriter, and (ii) will have the power and
authority
to transfer such Deposited Underlying Certificates 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
Deposited Underlying Certificates.
(xii) At the Closing Date, the 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 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 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 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 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; Representations of the
Underwriter.
(a) 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, the principal amount of the Certificates set forth on
Schedule A
hereto in exchange for the Deposited Underlying Certificates and
the Corridor
Premium Amount.
(b) The Underwriter hereby represents and warrants to the
Company
that (i) with respect to the Deposited Underlying Certificates, as
of the date
hereof and immediately prior to the transfer of the Deposited
Underlying
Certificates by the Underwriter to the Company, the Underwriter is
the sole
owner of the Deposited Underlying Certificates, free and clear of
any liens,
pledge, charges or encumbrances of any kind, and (ii) the
Underwriter has not
assigned any interest in any Deposited Underlying Certificates or
any
distributions thereon, except as contemplated in the Trust
Agreement.
(c) Upon discovery of a breach of any of the representations
and
warranties referred to in Section 2(b) above which materially and
adversely
affects the interests of the Certificateholders in the Deposited
Underlying
Certificates, the Underwriter or the Company shall give prompt
written notice to
the other party, the Trustee and the Certificateholders. The
Underwriter shall
cure such breach in all material respects or, if such breach cannot
be cured,
repurchase such Deposited Underlying Certificates if so directed in
writing by
holders of at least 51% of the Percentage Interests of each related
Class of
Certificates. The repurchase price for any such repurchase shall be
the
outstanding principal balance of such Deposited Underlying
Certificates, plus
accrued and unpaid interest thereon.
Section 3. Delivery and Payment.
Delivery of the Certificates to be purchased by the Underwriter
in
exchange for the Deposited Underlying Certificates to be purchased
by the
Depositor shall be made at the office of Barclays Capital Inc.
("Barclays"), 200
Park Avenue, New York, New York 10166, 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
November 30, 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, (i) by
transfer of
all the right, title and interest of the Underwriter in and to the
Deposited
Underlying Certificates, including all distributions thereon
payable after
November 2006, and the Corridor Premium Amount, to the Company or,
(ii) on the
order of the Company, to the Trustee, against delivery of the
Certificates. The
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
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 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 Certificates in which a prospectus relating to the
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 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 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 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 Certificates for sale and determination
