BEAR STEARNS ASSET BACKED SECURITIES I LLC
Dated: April 13, 2006
Bear, Stearns & Co. Inc.
383 Madison Avenue
New York, New York 10179
Dear Ladies and Gentlemen:
1. Introduction. Bear Stearns Asset Backed Securities I LLC, a Delaware limited liability company (the “Depositor”), from time to time proposes to issue and sell Asset-Backed Certificates (“Certificates”) in various series (each a “Series”), and, within each Series, in various classes, in one or more offerings on terms determined at the time of sale. The Certificates of each series will be issued pursuant to a pooling and servicing agreement (each, a “Pooling and Servicing Agreement”) among the Depositor, as depositor, EMC Mortgage Corporation, as sponsor and in certain instances, as company, one or more master servicers, a third party trustee (the “Trustee”) and, in certain instances, a securities administrator (the “Securities Administrator”). Upon issuance, the Certificates of each series will evidence undivided interests in the Trust Fund (as defined in the Pooling and Servicing Agreement) established for such series containing mortgages or, in the event the Trust Fund, or a portion thereof, constitutes a real estate mortgage investment conduit (“REMIC”), the Trust Fund may contain interests issued by a trust which will contain mortgages, all as described in the Prospectus (as defined below). Terms not defined herein which are defined in the Pooling and Servicing Agreement shall have the meanings ascribed to them in the Pooling and Servicing Agreement.
Whenever the Depositor determines to make an offering of a Series of Certificates (an “Offering”) through you or an underwriting syndicate managed or co managed by you, it will offer to enter into an agreement (“Terms Agreement”) providing for the sale of such Certificates to, and the purchase and offering thereof by, you and such other co managers and underwriters, if any, which have been selected by you and have authorized you to enter into such Terms Agreement and other related documentation on their behalf (collectively, the “Underwriters,” which term shall include you whether acting alone in the sale of Certificates or as a co manager or as a member of an underwriting syndicate). The Terms Agreement relating to each Offering shall specify the principal amount of Certificates to be issued and their terms not otherwise specified in the Pooling and Servicing Agreement, the price at which the Certificates are to be purchased by each of the Underwriters from the Depositor and the initial public offering price or the method by which the price at which the Certificates are to be sold will be determined. The Terms Agreement, which shall be substantially in the form of Exhibit A hereto, may take the form of an exchange of any standard form of written telecommunication between you and the Depositor. Each Offering governed by this Agreement, as supplemented by the applicable Terms Agreement, shall inure to the benefit of and be binding upon the Depositor and each of the Underwriters participating in the Offering of such Certificates.
The Depositor hereby agrees with the Underwriters as follows:
2. Representations and Warranties of the Depositor. The Depositor represents and warrants to you as of the date hereof, and to each Underwriter named in the applicable Terms Agreement as of the date of such Terms Agreement, as follows:
(a) A registration statement on Form S-3, including a prospectus, and such amendments thereto as may have been required to the date hereof, relating to the Certificates and the offering thereof from time to time in accordance with Rule 415 under the Securities Act of 1933, as amended (the “Act”), have been filed with the Securities and Exchange Commission (the “Commission”) and such registration statement as amended has become effective. Such registration statement as amended and the prospectus relating to the sale of Certificates constituting a part thereof as from time to time amended or supplemented (including any prospectus filed with the Commission pursuant to Rule 424 of the rules and regulations of the Commission (the “Rules and Regulations”) under the Act, including any documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act which were filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on or before the Effective Date of the Registration Statement or the date of the Prospectus Supplement, are respectively referred to herein as the “Registration Statement” and the “Prospectus”; provided, however, that a supplement to the Prospectus (a “Prospectus Supplement”) prepared pursuant to Section 5(a) hereof shall be deemed to have supplemented the Prospectus only with respect to the Offering of the Series of Certificates to which it relates. The conditions of Rule 415 under the Act have been satisfied with respect to the Depositor and the Registration Statement. The Depositor further proposes to prepare, after the final terms of all classes of the Certificates have been established, either 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 or an Iterative Information Package (such Free Writing Prospectus, together with the Basic Prospectus, or any Iterative Information Package, 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). An “Iterative Information Package” shall mean with respect to any class of Certificates, collectively the following documents: (i) one or more term sheets or other Written Communications, providing information about that class of Certificates and the structure and other cash flow characteristics thereof, information regarding the payment priority of such certificates, the basic terms of any credit enhancements, including any subordination, as known at the time of such term sheet, factual information about the Mortgage Loans (other than any Underwriter Derived Information) as known at the time of such term sheet, information regarding the parties to the transaction as known at the time of such term sheet, and the tax, ERISA and SMMEA characteristics of that class of Certificates as known at the time of such term sheet, (ii) a term sheet supplement, containing relevant risk factors and additional information similar to the information in the Prospectus Supplement to the extent known at the time of such term sheet supplement, and (iii) the Prospectus, which may be provided by a link to a website. Each of the items described in (i) and (ii) in the preceding sentence shall constitute a Free Writing Prospectus.
(b) On the effective date of the Registration Statement, the Registration Statement and the Prospectus and any static pool information provided by the Depositor pursuant to Regulation AB Item 1105(a), (b) and (c), but deemed excluded from the Registration Statement and the Prospectus pursuant to Regulation AB Item 1105(d) conformed in all material respects to the requirements of the Act and the Rules and Regulations, and did not include 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, and on the date of each Terms Agreement, the Registration Statement and the Prospectus will conform in all material respects to the requirements of the Act and the Rules and Regulations, and the Prospectus and any static pool information provided by the Depositor pursuant to Regulation AB Item 1105(a), (b) and (c), but deemed excluded from the Registration Statement and the Prospectus pursuant to Regulation AB Item 1105(d) will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading; provided, however, that the foregoing does not apply to 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”). 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.
(c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, earnings, affairs, regulatory situation or business prospects of the Depositor whether or not arising in the ordinary course of business and (B) there have been no transactions entered into by the Depositor which are material, other than those in the ordinary course of business.
(d) 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.
(e) This Agreement has been, and the Pooling and Servicing Agreement when executed and delivered as contemplated hereby and thereby will have been, duly executed and delivered by the Depositor and each constitutes, or will constitute when so executed and delivered, a legal, valid and binding instrument enforceable against the Depositor in accordance with its terms, subject, as to the enforceability of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium and other laws affecting the rights of creditors generally, and to general principles of equity and the discretion of the court (regardless of whether enforceability of such remedies is considered in a proceeding in equity or at law).
(f) At the applicable Closing Date, each applicable Terms Agreement will have been duly authorized, executed and delivered by the Depositor and will be a legal, valid and binding obligation of the Depositor enforceable in accordance with its terms, subject to the effect of bankruptcy, insolvency, moratorium, fraudulent conveyance and other laws affecting the rights of creditors generally, and to general principles of equity and the discretion of the court (regardless of whether enforceability of such remedies is considered in a proceeding in equity or at law).
(g) The issuance of the Certificates has been duly authorized by the Depositor and, when such Certificates are executed and authenticated in accordance with the Pooling and Servicing Agreement and delivered against payment pursuant to this Agreement, such Certificates will be validly issued and outstanding; and the Certificates will be entitled to the benefits provided by the Pooling and Servicing Agreement. The Certificates are in all material respects in the form contemplated by the Pooling and Servicing Agreement.
(h) Neither the Depositor nor the Trust Fund is or, as a result of the offer and sale of the Certificates as contemplated in this Agreement will become, an “investment company” as defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”), or an “affiliated person” of any such “investment company” that is registered or is required to be registered under the Investment Company Act (or an “affiliated person” of any such “affiliated person”), as such terms are defined in the Investment Company Act.
(i) The representations and warranties made by the Depositor in the Pooling and Servicing Agreement and made in any Officer’s Certificate of the Depositor delivered pursuant to the Pooling and Servicing Agreement will be true and correct at the time made and on the Closing Date.
3. Purchase, Sale and Delivery of Certificates. Delivery of and payment for the Certificates shall be made at your office or at such other location as you shall make known at such time as shall be specified in the applicable Terms Agreement, each such time being herein referred to as a “Closing Date.” Delivery of the Certificates shall be made by the Depositor to each Underwriter against payment of the purchase price specified in the applicable Terms Agreement in Federal Funds by wire or check. Unless delivery is made through the facilities of the Depository Trust Company, the Certificates so to be delivered will be in definitive, fully registered form, in such denominations and registered in such names as you request, and will be made available for inspection and packaging at your office at least twenty four hours prior to the applicable Closing Date.
4. Offering by Underwriters. It is understood that each Underwriter proposes to offer the Certificates for sale to the public as set forth in the Prospectus.
(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, you have 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 you have received the Definitive Free Writing Prospectus you may, in compliance with the provisions of this Agreement, solicit offers to purchase Certificates; provided that, you 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 the 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 will be superseded by the Definitive Free Writing Prospectus. This free writing prospectus is being delivered to you solely to provide you with information about the offering of the Certificates referred to in this free writing prospectus and to solicit an offer to purchase the Certificates, when, as and if issued. Any such offer to purchase made by you will not be accepted and will not constitute a contractual commitment by you to purchase any of the Certificates until we have accepted your offer to purchase Certificates. We will not accept any offer by you to purchase Certificates, and you will not have any contractual commitment to purchase any of the Certificates until after you have received the Definitive Free Writing Prospectus. You may withdraw your offer to purchase Certificates at any time prior to our acceptance of your offer.
“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 the 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 Certificates referred to in these materials are being sold when, as and if issued. You are advised that Certificates may not be issued that have the characteristics described in these materials. Our obligation to sell such Certificates to you is conditioned on the mortgage loans and certificates having the characteristics described in these materials. If for any reason we do not deliver such Certificates, we will notify you, and neither the issuer nor any underwriter will have any obligation to you to deliver all or any portion of the Certificates 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 you 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” shall have 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: