Exhibit 1.1
UNDERWRITING AGREEMENT
New York, New York
December 8, 2005
Credit Suisse First Boston LLC
Barclays Capital Inc.
Deutsche Bank Securities, Inc.
Greenwich Capital Markets, Inc.
UBS Securities LLC
Ladies and Gentlemen:
Fremont Mortgage Securities Corporation, a Delaware corporation (the
"Company"), proposes to sell to the underwriters named in Schedule II hereto
(collectively, the "Underwriters" and each, an "Underwriter") the principal
amount of the Fremont Home Loan Trust 2005-E, Mortgage-Backed Certificates,
Series 2005-E, identified in Schedule I hereto (the "Securities"), to be issued
under a pooling and servicing agreement, to be dated as of December 1, 2005 (the
"Pooling and Servicing Agreement"), among the Company, as depositor, Fremont
Investment & Loan, as originator and servicer (the "Servicer"), Xxxxx Fargo
Bank, N.A., as master servicer and trust administrator and HSBC Bank USA,
National Association, as trustee (the "Trustee").
Each class of Securities listed in Schedule I hereto will represent an
undivided beneficial ownership interest in the Fremont Home Loan Trust 2005-E
(the "Trust"). The assets of the Trust will include, among other things, a pool
of conventional fixed and adjustable rate, one- to four-family first and second
lien residential mortgage loans (the "Mortgage Loans") transferred to the
Company pursuant to a mortgage loan purchase agreement, dated as of December 1,
2005 (the "Mortgage Loan Purchase Agreement"), between Fremont Investment & Loan
("Fremont") and the Company, and by the Company to the Trust pursuant to the
Pooling and Servicing Agreement. This Underwriting Agreement shall hereinafter
be referred to as the "Agreement." This Agreement, the Pooling and Servicing
Agreement and the Mortgage Loan Purchase Agreement are collectively hereinafter
referred to as the "Basic Documents." Capitalized terms used herein and not
otherwise defined shall have the respective meanings ascribed thereto in the
Pooling and Servicing Agreement.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such form (the file number of which is set forth in Schedule I hereto), which
has been declared effective by the Commission, for the registration under the
Act of the Securities. Such registration statement, as amended to the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1) under the Act
and complies in all other material respects with said Rule. The Company proposes
to file with the
Commission pursuant to Rule 424 under the Act a supplement to the form of
prospectus included in such registration statement relating to the Securities
and the plan of distribution thereof and has previously advised the Underwriters
of all further information (financial and other) with respect to the Company to
be set forth therein. Such registration statement, including the exhibits
thereto, as amended to the date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Base Prospectus"; and such
supplemented form of prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424 (including the Base Prospectus as so
supplemented) is hereinafter called the "Final Prospectus." Any preliminary
prospectus, including any preliminary prospectus supplement which, as completed,
is proposed to be used in connection with the sale of the Securities and any
prospectus filed with the Commission pursuant to Rule 424(a) of the Act, is
hereinafter called a "Preliminary Prospectus"; provided that if no preliminary
prospectus is proposed to be used in connection with the sale of the Securities,
references herein to "Preliminary Prospectus" shall be disregarded. Any
reference herein to the Registration Statement, the Base Prospectus, the Final
Prospectus or the Preliminary Prospectus, if any, shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to Item 12
of Form S-3 which were filed under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), on or before the date of this Agreement, or the
issue date of the Preliminary Prospectus, the Base Prospectus or the Final
Prospectus, as the case may be; and any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement, the
Preliminary Prospectus, the Base Prospectus or the Final Prospectus shall be
deemed to refer to and include the filing of any document under the Exchange Act
after the date of this Agreement, or the issue date of the Preliminary
Prospectus, the Base Prospectus or the Final Prospectus, as the case may be, and
deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3
under the Act.
At or prior to the time when sales to investors of the Securities were
first made, as set forth in Schedule I hereto (the "Pricing Date"), the Company
had prepared the following information (collectively, the "Disclosure Package"):
the Preliminary Prospectus, if any, each "issuer free-writing prospectus" (as
defined pursuant to Rule 433 under the Securities Act, each an "Issuer Free
Writing Prospectus") and any other "free-writing prospectus" (as defined
pursuant to Rule 405 under the Securities Act, a "Free Writing Prospectus") or
portion thereof listed on Annex A to Schedule I hereto. If, subsequent to the
date of this Agreement, the Company and the Underwriters have determined 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 have
terminated their old purchase contracts and entered into new purchase contracts
with purchasers of the Securities, then "Disclosure Package" 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").
(b) As of the date hereof, when the Final Prospectus is first filed
pursuant to Rule 424 under the Act, when, prior to the Closing Date (as
hereinafter defined), any amendment to the Registration Statement becomes
effective (including the filing of any document incorporated by reference in the
Registration Statement), when any supplement to the Final Prospectus is filed
with the Commission and at the Closing Date (as hereinafter defined), (i) the
Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or
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supplemented as of any such time, will comply in all material respects with the
requirements of the Act and the respective rules and regulations thereunder,
(ii) the Registration Statement, as amended as of any such time, will not
contain 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 not misleading, and (iii) the Final Prospectus, as amended or
supplemented as of any such time, will not contain 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 were made, not misleading; provided, however,
that the Company makes no representations or warranties as to (A) the
information contained in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the lead manager specified in Schedule I
hereto (the "Lead Manager") specifically for use in connection with the
preparation of the Registration Statement and the Final Prospectus or (B) the
information contained in the Current Report (as defined in Section 5(b) below),
or in any amendment thereof or supplement thereto, incorporated by reference in
the Registration Statement or the Final Prospectus (or any amendment thereof or
supplement thereto), except to the extent that such information is Derived
Information as defined herein, or is otherwise included in the Disclosure
Package.
The Disclosure Package, at the Pricing Date 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 and warranty with respect to the information
contained in or omitted from the Disclosure Package or any amendment thereof or
supplement thereto in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through the Lead
Manager specifically for use in connection with the preparation of the
Disclosure Package.
(c) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware and has
corporate and other power and authority to own its properties and conduct its
business, as now conducted by it, and to enter into and perform its obligations
under this Agreement and the other Basic Documents.
(d) The Company is not aware of any request by the Commission for any
further amendment of the Registration Statement or the Base Prospectus or for
any additional information. The Commission has not issued any stop order
suspending the effectiveness of the Registration Statement or, to the best of
the Company's knowledge, instituted or threatened any proceeding for that
purpose. To the best of the Company's knowledge, no suspension of the
qualification of the Securities for sale in any jurisdiction has been made and
no proceeding for such purpose has been initiated or threatened.
(e) The Basic Documents (other than this Agreement), when delivered by
the Company, will have been duly authorized, executed and delivered by the
Company, and will constitute a legal, valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms, subject,
as to the enforcement of remedies, to applicable bankruptcy, insolvency,
reorganization, moratorium, receivership and similar laws affecting
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creditors' rights generally and to general principles of equity (regardless of
whether the enforcement of such remedies is considered in a proceeding in equity
or at law).
(f) This Agreement has been duly authenticated, executed and delivered
by the Company.
(g) On the Closing Date, the Basic Documents will conform to the
description thereof contained in the Registration Statement, the Preliminary
Prospectus, if any, the Final Prospectus and the Disclosure Package; the
Securities will have been duly and validly authorized and, when such Securities
are duly and validly executed, issued and delivered in accordance with the
Pooling and Servicing Agreement, and sold to the Underwriters as provided
herein, will be validly issued and outstanding and entitled to the benefits of
the Pooling and Servicing Agreement.
(h) As of the Closing Date, the representations and warranties of the
Company set forth in the Pooling and Servicing Agreement will be true and
correct.
(i) Neither the execution and delivery by the Company of this
Agreement or any other of the Basic Documents nor the consummation by the
Company of the transactions contemplated herein or therein, nor the issuance of
the Securities or the public offering thereof as contemplated in the Final
Prospectus or the Disclosure Package will conflict in any material respect with
or result in a material breach of, or constitute a material default (with notice
or passage of time or both) under, or result in the imposition of any lien,
pledge, charge, of the property or assets of the Company (except as required or
permitted pursuant thereto or hereto), pursuant to any material mortgage,
indenture, loan agreement, contract or other instrument to which the Company is
party or by which it is bound, nor will such action result in any violation of
any provisions of any applicable law, administrative regulation or
administrative or court decree, the certificate of incorporation or by-laws of
the Company. The Company is not in violation of its certificate of
incorporation, in default in any material respect in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, note, lease,
trust agreement, transfer and servicing agreement or other instrument to which a
party or by which it may be bound, or to which any material portion of its
property or assets is subject.
(j) No legal or governmental proceedings are pending to which the
Company is a party or of which any property of the Company is subject, which if
determined adversely to the Company would, individually or in the aggregate,
have a material adverse effect on the financial position, stockholders' equity
or results of operations of the Company; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(k) Since the date of which information is given in the Registration
Statement, there has not been any material adverse change in the business or net
worth of the Company.
(l) Any taxes, fees and other governmental charges in connection with
the execution and delivery of the Basic Documents and the execution, delivery
and sale of the Securities have been or will be paid at or prior to the Closing
Date.
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(m) No consent, approval, authorization or order of, or registration,
filing or declaration with, any court or governmental agency or body is
required, or will be required, in connection with (i) the execution and delivery
by the Company of any Basic Document or the performance by the Company of any or
(ii) the offer, sale or delivery of the Securities except such as shall have
been obtained or made, as the case may be, or will be obtained or made, as the
case may be, prior to the Closing Date, or will not materially adversely affect
the ability of the Company to perform its obligations under any Basic Document.
(n) The Company possesses, and will possess, all material licenses,
certificates, authorities or permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies necessary to conduct the business now
conducted by it and as described in the Preliminary Prospectus, if any, Final
Prospectus and the Disclosure Package, except to the extent that the failure to
have such licenses, certificates, authorities or permits does not have a
material adverse effect on the Securities or the financial condition of the
Company, and the Company has not received, nor will have received as of each
Closing Date, 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 conduct of its business,
operations or financial condition.
(o) On the Closing Date, (i) the Company will have good and marketable
title to the related Mortgage Loans being transferred by it to the Trust
pursuant thereto, free and clear of any lien, (ii) the Company will not have
assigned to any person any of its right, title or interest in such Mortgage
Loans or in the Pooling and Servicing Agreement, and (iii) the Company will have
the power and authority to sell such Mortgage Loans to the Trust, and upon
execution and delivery of the Pooling and Servicing Agreement by the Trustee and
Servicer, the Trust will have good and marketable title thereto, in each case
free of liens other than any lien created by an Underwriter.
(p) The properties and businesses of the Company conform, and will
conform, in all material respects, to the descriptions thereof contained in the
Preliminary Prospectus, if any, the Final Prospectus and the Disclosure Package.
(q) The Company is not, and, after giving effect to the transactions
contemplated by the Pooling and Servicing Agreement and the offering and sale of
the Securities, neither the Company nor the Trust Fund will be, an "investment
company", as defined in the Investment Company Act of 1940, as amended.
(r) It is not necessary in connection with the offer, sale and
delivery of the Securities in the manner contemplated by this Agreement to
qualify the Pooling and Servicing Agreement under the Trust Indenture Act of
1939, as amended (the "1939 Act").
(s) The Company is not an "ineligible issuer" as defined in Rule 405
under the Act.
(t) Other than the Preliminary Prospectus, if any, and the Final
Prospectus, the Company (including its agents and representatives other than the
Underwriters in their capacity as such) has not made, used, prepared,
authorized, approved or referred to and will not
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make, use, prepare, authorize, approve or refer to any "written communication"
(as defined in Rule 405 under the Securities Act) that constitutes an offer to
sell or solicitation of an offer to buy the Securities other than (i)
information included in the Disclosure Package (ii) any document not
constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act
or Rule 134 under the Securities Act or (iii) other written communication
approved in writing in advance by the Lead Underwriter.
(u) Any Issuer Free Writing Prospectus included in the Disclosure
Package complied in all material respects with the Securities Act and has been,
or will be filed in accordance with Rule 433 under the Securities Act (to the
extent required thereby).
2. Purchase and Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties herein set forth, the Company agrees to
sell to each Underwriter, and each Underwriter agrees to purchase, severally but
not jointly, from the Company, at the purchase price set forth in Schedule II
hereto, the principal amount or percentage interest of the Securities set forth
opposite such Underwriter's name therein.
3. Delivery and Payment. Delivery of and payment for the Securities shall
be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Underwriters and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to the Underwriters for their
respective accounts against payment by the Underwriters of the purchase price
thereof in the manner set forth in Schedule II hereto. If Schedule I indicates
that the Securities are to be issued in book-entry form, delivery of the
Securities shall be made through the facilities of the depository or
depositories set forth on Schedule I. Alternatively, certificates for the
Securities shall be registered in such names and in such denominations as the
Underwriters may request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Underwriters in New York, New York, not later than
1:00 p.m., New York City time, on the business day prior to the Closing Date.
4. Offering by the Underwriters. It is understood by the parties hereto
that, after the Registration Statement becomes effective, the Underwriters
propose to offer the Securities for sale to the public (which may include
selected dealers) as set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or supplement
(including the Final Prospectus) to the Base Prospectus unless the Company has
furnished to each Underwriter a copy for its review prior to filing and will not
file any such proposed amendment or supplement to which such Underwriter
reasonably objects. Subject to the foregoing sentence, the Company will cause
the Final Prospectus to be filed with the Commission pursuant to Rule 424. The
Company will advise the Underwriters promptly (i) when the Final Prospectus
shall have been filed with the Commission pursuant to Rule 424, (ii) when any
amendment to the Registration
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Statement relating to the Securities shall have become effective, (iii) of any
request by the Commission for any amendment of the Registration Statement or
amendment of or supplement to the Final Prospectus or for any additional
information, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) Other than information that is included in the Disclosure Package
or such items that constitute a Free Writing Prospectus, the Company will cause
any Computational Materials, Collateral Term Sheets and ABS Term Sheets (each as
defined in Section 11 below) with respect to the Securities that are delivered
by the Underwriters to the Company pursuant to Section 11 to be filed with the
Commission on a Current Report on Form 8-K (the "Current Report") pursuant to
Rule 13a-11 under the Exchange Act not later than the business day immediately
following the day on which such Computational Materials, Collateral Term Sheets
or ABS Term Sheets are delivered to counsel for the Company by the Underwriters
as provided in Section 11, and will promptly advise the Underwriters when such
Current Report has been so filed. Such Current Report shall be incorporated by
reference in the Final Prospectus and the Registration Statement.
Notwithstanding the two preceding sentences, the Company shall have no
obligation to file materials provided by the Underwriters pursuant to Section 11
which, in the reasonable determination of the Company after making reasonable
efforts to consult with the Underwriters, are not required to be filed pursuant
to the No-Action Letters (as defined in Section 11 below), or which contain
erroneous information or contain any untrue statement of a material fact or,
which, when read in conjunction with the Final Prospectus, omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading; it being understood, however, that the Company shall
have no obligation to review or pass upon the accuracy or adequacy of, or to
correct, any Computational Materials, Collateral Term Sheets or ABS Term Sheets
provided by the Underwriters to the Company pursuant to Section 11 hereof.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend or supplement the
Final Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this Section 5, an
amendment or supplement which will correct such statement or omission or an
amendment which will effect such compliance and will use its best efforts to
cause any required post-effective amendment to the Registration Statement
containing such amendment to be made effective as soon as possible; provided,
however, that the Company will not be required to file any such amendment or
supplement with respect to any Computational Materials incorporated by reference
in the Final Prospectus other than any amendments or supplements of such
Computational Materials that are furnished to the Company pursuant to Section
11(d) hereof which the Company determines to file in accordance therewith.
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(d) The Company will furnish to the Underwriters and counsel for the
Underwriters, without charge, executed copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and as many copies of the Final
Prospectus and any Issuer Free Writing Prospectus and any amendments thereof and
supplements thereto (other than exhibits to the related Current Report) as the
Underwriters may reasonably request. The Company will pay the expenses of
printing all documents relating to the initial offering, provided that any
additional expenses incurred in connection with the requirement of delivery of a
market-making prospectus, if required, will be borne by the Underwriter
delivering a market-making prospectus.
(e) The Company will furnish such information as may be required and
otherwise cooperate in qualifying the Securities for sale under the laws of such
jurisdictions as the Underwriters may reasonably designate and to maintain such
qualifications in effect so long as required for the distribution of the
Securities; provided, however, that the Company shall not be required to qualify
to do business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to general or unlimited service of process in
any jurisdiction where it is not now so subject.
(f) The Company will pay all expenses (including fees of counsel for
the Underwriters, except as provided herein) incident to the performance of the
obligations under this Agreement, including:
(i) the word processing, printing and filing of the Registration
Statement as originally filed and of each amendment thereto;
(ii) the reproduction of this Agreement;
(iii) the preparation, printing, issuance and delivery of the
Securities to the Underwriters;
(iv) the fees and disbursements of counsel and accountants for
the Company;
(v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 5(e) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation
of a blue sky survey, if requested by the Underwriters;
(vi) if requested by the Underwriters, the determination of the
eligibility of the Securities for investment and the reasonable fees and
disbursements of counsel for the Underwriters in connection therewith and
in connection with the preparation of a legal investment memorandum;
(vii) the printing and delivery to the Underwriters of copies of
the Registration Statement as originally filed and of each amendment
thereto, of the preliminary prospectuses, and of the Base Prospectus and
Final Prospectus and any amendments or supplements thereto;
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(viii) if requested by the Underwriters, the printing and
delivery to the Underwriters of copies of any blue sky or legal investment
memorandum;
(ix) the fees of any rating agency rating the Securities; and
(x) the fees and expenses of the Trustee and the Servicer and
their counsel.
(g) The Company further acknowledges and agrees that:
(i) the purchase and sale of the Securities pursuant to this
Agreement is an arm's-length commercial transaction between the Company, on
the one hand, and the several Underwriters, on the other;
(ii) in connection therewith and with the process leading to such
transaction each Underwriter is acting solely as a principal and not the
agent or fiduciary of the Company
(iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether
such Underwriter has advised or is currently advising the Company on other
matters) or any other obligation to the Company except the obligations
expressly set forth in this Agreement; and
(iv) the Company has consulted its own legal and financial
advisors to the extent it deemed appropriate.
The Company agrees that it will not claim that the Underwriters, or any of
them, has rendered advisory services of any nature or respect, or owes a
fiduciary or similar duty to the Company, in connection with such transaction or
the process leading thereto.
6. Conditions Precedent to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to the Registration Statement filed prior to the Closing Date
(including the filing of any document incorporated by reference therein) and as
of the Closing Date, to the accuracy of the statements of the Company made in
any certificates delivered pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions:
(a) The Underwriters shall have received from Deloitte & Touche, a
letter or letters dated the date hereof confirming that they are independent
public accountants within the meaning of the Act and the Rules and Regulations
and otherwise in form and substance reasonably satisfactory to the Underwriters
and counsel for the Underwriters, relating to, among other things, the
information in the Disclosure Package, the Preliminary Prospectus, if any, and
the Final Prospectus.
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(b) All actions required to be taken and all filings required to be
made by the Company under the Act prior to the sale of the Securities shall have
been duly taken or made. At and prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Underwriters, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development involving a
prospective change, in or affecting particularly the business or properties of
the Company or the Servicer which, in the reasonable judgment of the
Underwriters, materially impairs the investment quality of the Securities; (ii)
any downgrading in the rating of the securities of the Company by any
"nationally recognized statistical rating organization" (as such term is defined
for purposes of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension or limitation of trading in securities generally
on the New York Stock Exchange, or any setting of minimum prices for trading on
such exchange; (iv) any banking moratorium declared by federal, New York or
California authorities; or (v) any outbreak or escalation of major hostilities
in which the United States is involved, any declaration of war by Congress or
any other substantial national or international calamity or emergency if, in the
reasonable judgment of the Underwriters, the effects of any such outbreak,
escalation, declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the sale of and payment for the
Securities.
(d) The Underwriters shall have received a favorable opinion of Hunton
& Xxxxxxxx LLP, special counsel to the Servicer, addressed to the Underwriters,
dated the Closing Date and in form and substance reasonably satisfactory to the
Underwriters and their counsel, with respect to such matters as the Underwriters
may require.
(e) The Underwriters shall have received a favorable opinion of Hunton
& Xxxxxxxx LLP, special tax counsel for the Company, addressed to the
Underwriters, dated the Closing Date and reasonably satisfactory in form and
substance to the Underwriters, generally to the effect that (i) the information
in the Base Prospectus under "Federal Income Tax Consequences" and in the Final
Prospectus under "Federal Income Tax Consequences," insofar as such information
describes federal statutes and regulations or otherwise constitute matters of
law or legal conclusions of the statutes or regulations of such jurisdiction
have been prepared or reviewed by such counsel, and such information is correct
in all material respects; and (ii) assuming compliance with all of the
provisions of the Pooling and Servicing Agreement, the applicable portions of
the Trust will qualify as one or more REMICs as of the Closing Date.
(f) The Underwriters shall have received a favorable opinion of Hunton
& Xxxxxxxx LLP, special counsel for the Company, addressed to the Underwriters,
dated the Closing Date and reasonably satisfactory in form and substance to the
Underwriters, with respect to the validity of the Certificates, ERISA matters
and such other related matters as the Underwriters shall require, and the
Company shall have furnished or caused to be furnished to
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such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(g) The Underwriters shall have received a favorable opinion of
counsel of Hunton & Xxxxxxxx LLP, special counsel for Fremont, addressed to the
Underwriters, dated the Closing Date and reasonably satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, with respect to
such matters as the Underwriters may require.
(h) The Company shall have furnished to the Underwriters a letter,
dated the Closing Date, of Hunton & Xxxxxxxx LLP, special counsel to the Company
stating that nothing has come to its attention that would lead such counsel to
believe that the Disclosure Package containing substantially similar
information, as of its respective date and on the Pricing Date, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; it being understood that such
counsel need express no view as to financial, statistical or accounting
information (including any notes and schedules relating thereto) contained or
incorporated.
(i) The Underwriters shall have received a favorable opinion of
counsel for the Trustee, addressed to the Underwriters, dated the Closing Date
and reasonably satisfactory in form and substance to the Underwriters and
counsel for the Underwriters, with respect to such matters as the Underwriters
may require.
(j) The Underwriters shall have received a favorable opinion of
counsel to Xxxxx Fargo, as master servicer and trust administrator, addressed to
the Underwriters, dated the Closing Date and reasonably satisfactory in form and
substance to the Underwriters and counsel to the Underwriters, with respect to
such matters as the Underwriters may require.
(k) The Underwriters shall have received a certificate dated the
Closing Date of the President, any Vice President or the Secretary of the
Company in which the officer shall state that, to the best of his or her
knowledge after reasonable investigation, (i) the representations and warranties
of the Company with respect to the Mortgage Loans contained in any Basic
Document are true and correct, (ii) the representations and warranties of the
Company in this Agreement are true and correct, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the Closing Date, (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued, (v)
no proceedings for that purpose have been instituted or are contemplated by the
Commission, and (vi) there has been no amendment or other document filed
affecting the Certificate of Incorporation or bylaws of the Company, and no such
amendment has been authorized.
(l) The Underwriters shall have received from Hunton & Xxxxxxxx LLP
and any other counsel to the Company, reliance letters addressed to the
Underwriters and dated the Closing Date, with respect to each opinion delivered
by such counsel to the Rating Agencies.
11
(m) On or before the Closing Date, the Underwriters shall have
received evidence satisfactory to the Underwriters that each class of Securities
has been given the ratings set forth on Schedule I hereto.
(n) At the Closing Date, the Securities and the Pooling and Servicing
Agreement will conform in all material respects to the descriptions thereof
contained in the Final Prospectus.
(o) The Underwriters shall not have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement or the
Final Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact or omits to state a fact which, in the opinion of Xxxxxxx
Xxxxxxxx & Wood LLP, counsel for the Underwriters, is material and is required
to be stated therein or is necessary to make the statements therein not
misleading.
(p) All corporate proceedings and other legal matters relating to the
authorization, form and validity of this Agreement, the Pooling and Servicing
Agreement, the Securities, the Registration Statement and the Final Prospectus,
and all other legal matters relating to this Agreement and the transactions
contemplated hereby, shall be reasonably satisfactory in all respects to counsel
for the Underwriters, and the Company shall have furnished to such counsel all
documents and information that they may reasonably request to enable them to
pass upon such matters.
(q) At the Closing Date, the Underwriters shall have received from
Xxxxxxx Xxxxxxxx & Xxxx LLP, counsel for the Underwriters, a letter with respect
to the Final Prospectus, in form and substance satisfactory to the Underwriters.
(r) The Underwriters shall have received from their counsel, Thacher,
Xxxxxxxx & Xxxx LLP, a letter, dated the Closing Date, stating that nothing has
come to its attention that would lead such counsel to believe that the
Disclosure Package containing substantially similar information, as of its date
and on the Pricing Date, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; it being understood that such counsel need express no view as to as
to financial, statistical or accounting information (including any notes and
schedules relating thereto) contained or incorporated.
(s) On or before the Closing Date, the Underwriters shall have
received from the Company a fully executed Indemnification and Contribution
Agreement among the Underwriters and Fremont.
The Company will provide or cause to be provided to the Underwriters such
conformed copies of such opinions, certificates, letters and documents as the
Underwriters may reasonably request.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
12
If any condition specified in this Section 6 shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Underwriters 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 except as provided in Section 7 hereof.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied or because of
any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been reasonably incurred by them
in connection with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person who controls each Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement for the registration of the Securities as originally
filed or in any amendment thereof, or in the Preliminary Prospectus, if any, the
Final Prospectus or the Disclosure Package, or in any amendment thereof or
supplement thereto, or arise out of or are based upon an omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (which, in respect of information included
in the Disclosure Package, was not corrected by the Corrective Information
subsequently supplied to the Underwriters at any time prior to the Pricing
Date), and agree to reimburse each such indemnified party for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein (A) in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Underwriter specifically for use
in connection with the preparation thereof or (B) in any Current Report or any
amendment or supplement thereof, except to the extent that any untrue statement
or alleged untrue statement therein results (or is alleged to have resulted)
directly from an error (a "Collateral Error") in the information concerning the
Mortgage Loans furnished by the Company to any Underwriter in writing or by
electronic transmission that was used in the preparation of any Computational
Materials, Collateral Term Sheets or ABS Term Sheets included in such Current
Report (or amendment or supplement thereof) or material relating to servicing
procedures (such information derived from the information concerning the
Mortgage Loans referred to as "Derived Information"), (ii) such indemnity with
respect to the Base Prospectus shall not inure to the benefit of any Underwriter
(or any person controlling such Underwriter) from whom the person asserting any
such loss,
13
claim, damage or liability purchased the Securities which are the subject
thereof if such person did not receive either (x) a copy of the Final Prospectus
(or the Final Prospectus as amended or supplemented, provided that the Company
has provided any such amendment or supplement to the Underwriter as required by
Section 5(d) hereof) or (y) notice that the sale was made pursuant to the
Registration Statement pursuant to Rule 173 under the Act, in any case where
such delivery is required by the Act and the untrue statement or omission of a
material fact contained in the Base Prospectus was corrected in the Final
Prospectus (or the Final Prospectus as amended or supplemented), (iii) such
indemnity with respect to the Disclosure Package shall not inure to the benefit
of any Underwriter (or any person controlling such Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased the
Securities which are the subject thereof if such person did not receive a copy
of the Disclosure Package (or the Disclosure Package as amended or supplemented
by any Corrective Information), and (iv) such indemnity with respect to any
Collateral Error shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any loss,
claim, damage or liability received any Computational Materials, Collateral Term
Sheets or ABS Term Sheets that were prepared on the basis of such Collateral
Error, if, within a reasonable time prior to the time of confirmation of the
sale of the Securities to such person, the Company notified such Underwriter in
writing of the Collateral Error or provided in written or electronic form
information superseding or correcting such Collateral Error (in any such case, a
"Corrected Collateral Error"), and such Underwriter failed to notify such person
thereof or to deliver such person corrected Computational Materials, Collateral
Term Sheets and/or ABS Term Sheets, as applicable. This indemnity will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors and its officers who sign the Registration Statement,
and each person who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company
to each Underwriter, but only with reference to (A) written information relating
to such Underwriter furnished to the Company by such Underwriter specifically
for use in the preparation of the documents referred to in the foregoing
indemnity, (B) information included in Free Writing Prospectuses prepared by or
on behalf of the Underwriters (other than information constituting an Issuer
Free Writing Prospectus or information relating to the Company and included in
the Disclosure Package)or (C) any Computational Materials, Collateral Term
Sheets or ABS Term Sheets furnished to the Company by or on behalf of such
Underwriter pursuant to Section 11 and incorporated by reference in the
Registration Statement, Preliminary Prospectus or the Final Prospectus (except
that no such indemnity shall be available for any losses, claims, damages or
liabilities, or actions in respect thereof resulting from any Collateral Error,
other than a Corrected Collateral Error). This indemnity agreement will be in
addition to any liability which the Underwriters may otherwise have. The Company
acknowledges that the statements set forth in (i) the first sentence of the last
paragraph on the front cover of the Final Prospectus and (ii) in the fourth
sentence of the second paragraph and the second sentence of the third paragraph
under the heading "Method of Distribution" in the Final Prospectus constitute
the only information furnished in writing by or on behalf of the several
Underwriters for inclusion in the documents referred to in the foregoing
indemnity (other than the Free Writing Prospectuses referred in Clause (B) above
and any Computational Materials, Collateral Term Sheets or ABS Term Sheets
furnished to the Company by any Underwriter), and each Underwriter confirms that
such statements are correct.
14
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and, to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel reasonably 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 shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which 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 counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 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 in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (exclusive of any local counsel), approved by the
Underwriters in the case of subparagraph (a), representing the indemnified
parties under subparagraph (a) who are parties to such action), (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action or (iii) the indemnifying party
has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that if clause (i) or (iii) is
applicable, such liability shall be only in respect of the counsel referred to
in such clause (i) or (iii). No indemnifying party shall, without the prior
written consent of the indemnified parties, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened claim, investigation, action or proceeding in respect of which
indemnity or contribution may be or could have been sought by an indemnified
party under this Section 8 hereof (whether or not the indemnified party is an
actual or potential party thereto), unless (x) such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such claim, investigation, action or proceeding and
(ii) does not include a statement as to or an admission of fault, culpability or
any failure to act, by or on behalf of the indemnified party, and (y) the
indemnifying party confirms in writing its indemnification obligations hereunder
with respect to such settlement, compromise or judgment.
(d) To provide for just and equitable contribution in circumstances in
which the indemnification provided for in paragraph (a) or (b) of this Section 8
is due in accordance with its terms but is for any reason held by a court to be
unavailable from the Company or the Underwriters on the grounds of policy or
otherwise, the Company and the Underwriters shall contribute to the aggregate
losses, claims, damages and liabilities (including legal or other
15
expenses reasonably incurred in connection with investigating or defending same)
to which the Company and one or more of the Underwriters may be subject, in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Underwriters from the offering of the Securities or, if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof) as well
as any other relevant equitable considerations.
The relative benefits received by the Company and the Underwriters shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
(before deducting expenses) received by the Company bears to (y) the total
underwriting discounts and commissions deemed to have been received by the
Underwriters. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact in such Disclosure
Package, Preliminary Prospectus, if any, Final Prospectus, Free Writing
Prospectuses, Computational Materials, Collateral Term Sheets, ABS Term Sheets
or other materials results from information prepared by the Company on the one
hand or the Underwriters on the other and that party's relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
Notwithstanding anything to the contrary in this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act or the Exchange
Act shall have the same rights to contribution as such Underwriter, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the preceding sentence of
this paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this paragraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
Notwithstanding the provisions of this Section 8(d), no Underwriter shall
be required to contribute any amount in excess of the total underwriting
discounts and commissions deemed to have been received by such Underwriter in
the offering of the Securities.
9. Default by One or More of the Underwriters. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder (the "Defaulted
Securities") and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the non-defaulting
Underwriter or Underwriters shall have the right, within 24 hours thereafter, to
make arrangements for one or more of the non-defaulting Underwriters, or any
other
16
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the non-defaulting Underwriter or Underwriters shall not
have completed such arrangements within such 24-hour period, then the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth opposite their
names in Schedule II hereto bear to the aggregate amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such non-defaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any non-defaulting Underwriter or
the Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the non-defaulting Underwriter or Underwriters shall determine in
order that the required changes in the Registration Statement and the Final
Prospectus or in any other documents or arrangements may be effected. No action
taken pursuant to this Section 9 shall relieve any defaulting Underwriter from
its liability in respect of its default.
10. Offering Communications
(a) Unless preceded or accompanied by a prospectus satisfying the
requirements of Section 10(a) of the Securities Act, no Underwriter shall convey
or deliver any written communication to any person in connection with the
initial offering of the Securities, unless such written communication (1) is
made in reliance on Rule 134 under the Securities Act, (2) constitutes a
prospectus satisfying the requirements of Rule 430B under the Securities Act,
(3) constitutes a Free Writing Prospectus, or (4) constitutes Computational
Materials or ABS Term Sheets that have been, or will be delivered, to the
Company pursuant to Section 11 of this Agreement.
(b) Each Underwriter shall deliver to the Company, no later than one
business day prior to the date of first use thereof, (a) any Free Writing
Prospectus prepared by or on behalf of the Underwriter that contains any "issuer
information", as defined in Rule 433(h) under the Securities Act ("Issuer
Information"), and (b) any Free Writing Prospectus or portion thereof that
contains only a description of the final terms of the Securities.
Notwithstanding the foregoing, any Free Writing Prospectus that contains only
ABS Informational and Computational Materials (as defined in Section 1101 of
Regulation AB under the Securities Act) 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 Securities
Act or (b) the date of first use of such Free Writing Prospectus.
(c) Each Underwriter represents and warrants to the Company that the
Free Writing Prospectuses to be furnished to the Company by the Underwriter
pursuant to Section 10(b) will constitute all Free Writing Prospectuses of the
type required to be delivered pursuant to Section 10(b) that were furnished to
prospective purchasers of Securities by the Underwriter in connection with its
offer and sale of the Securities.
17
(d) The Company agrees to file with the Commission the following:
(i) Any Issuer Free Writing Prospectus;
(ii) Any Free Writing Prospectus or portion thereof delivered by
the Underwriter to the Company pursuant to Section 10(b); and
(iii) 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.
(e) Any Free Writing Prospectus required to be filed pursuant to
Section 10(d) by the Company shall be filed with the Commission not later than
the date of first use of the Free Writing Prospectus, except that:
(i) Any Free Writing Prospectus or portion thereof required to be
filed that contains only the description of the final terms of the
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 Certificates and the date of first use;
(ii) 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 pursuant to Rule 424(b)
under the Securities Act or two business days after the first use of such
Free Writing Prospectus;
(iii) Any Free Writing Prospectus required to be filed pursuant
to Section 10(d)(iii) 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; and
(iv) The Company shall not be required to file (A) Issuer
Information contained in any Free Writing Prospectus of an Underwriter or
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 Certificates, or (B) any Free Writing Prospectus or portion
thereof that contains a description of the Certificates or the offering of
the Certificates which does not reflect the final terms thereof.
(f) Each Underwriter shall file with the Commission (x) 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 and (y) any other materials required to be filed
under Rule 433 of the Act not later than the date of the first use of such Free
Writing Prospectus.
18
(g) Notwithstanding the provisions of Sections 10(d) and 10(f),
neither the Issuer 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.
(h) The Company and the Underwriters each agree that any Free Writing
Prospectuses prepared by it shall contain the following legend:
The Company 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 Company 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 Company, any
underwriter or any dealer participating in the offering will arrange
to send you the prospectus if you request it by calling toll-free
1-800-221-1037.
(i) The Underwriters each agree to retain all Free Writing
Prospectuses that they have used and that are not required to be filed pursuant
to this Section 10 for a period of three years following the initial bona fide
offering of the Securities.
(j) In the event that the Company or any Underwriter becomes aware
that, as of the Pricing Date, any Free Writing Prospectus delivered to a
purchaser of a Security contained any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
contained therein, in the light of the circumstances under which they were made,
not misleading (such Free Writing Prospectus, a "Defective Free Writing
Prospectus"), the Underwriter or Company, as appropriate, shall notify the other
parties to the is Agreement thereof within one business day after discovery. In
connection with the discovery of any Defective Free Writing Prospectus:
(i) The party responsible for the information to be corrected, if
requested by the Company or an Underwriter, as appropriate, shall prepare a
Free Writing Prospectus with Corrective Information that corrects the
material misstatement in or omission from the Defective Free Writing
Prospectus (such corrected Free Writing Prospectus, a "Corrected Free
Writing Prospectus");
(ii) The Underwriters shall deliver the Corrected Free Writing
Prospectus to each purchaser of a Security which received the Defective
Free Writing Prospectus prior to entering into an agreement to purchase any
Securities; and
(iii) The Underwriters shall notify such purchaser in a prominent
fashion that the prior agreement to purchase Securities has been
terminated, and of such purchaser's rights as a result of termination of
such agreement and shall provide such purchaser with an opportunity to
affirmatively agree to purchase such Securities on the terms described in
the Corrected Free Writing Prospectus.
19
(k) Each Underwriter covenants with the Company that after the final
Prospectus is available the Underwriter shall not distribute any written
information concerning the Securities to a prospective purchaser of Securities
unless such information is preceded or accompanied by the Final Prospectus or
the required notice pursuant to Rule 173 of the Act has been delivered.
11. Computational Materials and ABS Term Sheets.
(a) Other than information constituting Free Writing Prospectus, not
later than 10:30 a.m., New York City time, on a date no later than four business
days before delivery of the Final Prospectus to the Underwriters, the
Underwriters shall deliver to the Company five complete copies of all materials
provided by the Underwriters to prospective investors in the Securities which
constitute either (i) "Computational Materials" within the meaning of the
no-action letter dated May 20, 1994 issued by the Division of Corporation
Finance of the Commission to Xxxxxx, Peabody Acceptance Corporation I, Xxxxxx,
Xxxxxxx & Co. Incorporated, and Xxxxxx Structured Asset Corporation and the
no-action letter dated May 27, 1994 issued by the Division of Corporation
Finance of the Commission to the Public Securities Association (together, the
"Xxxxxx Letters") or (ii) "ABS Term Sheets" within the meaning of the no-action
letter dated February 17, 1995 issued by the Division of Corporation Finance of
the Commission to the Public Securities Association (the "PSA Letter" and
together with the Xxxxxx Letters, the "No-Action Letters"), if the filing of
such materials with the Commission is a condition of the relief granted in such
letters. In the case of any such materials that constitute "Collateral Term
Sheets" within the meaning of the PSA Letter, if such Collateral Term Sheets
have not previously been delivered to the Company as contemplated by Section
11(b)(i) below, five complete copies of such Collateral Term Sheets shall be
delivered by the Underwriters to the Company no later than 10:30 a.m., New York
City time, on the first business day following the date on which such Collateral
Term Sheets were initially provided to a potential investor. Each delivery of
Computational Materials, Collateral Term Sheets and/or ABS Term Sheets to the
Company pursuant to this paragraph (a) shall be effected by delivering four
copies of such materials to counsel for the Company on behalf of the Company at
the address specified in Section 13 hereof and one copy of such materials to the
Company.
(b) Each Underwriter, severally and not jointly, represents and
warrants to and agrees with the Company, as of the date hereof and as of the
Closing Date, that:
(i) if such Underwriter has provided any Collateral Term Sheets
to potential investors in the Securities prior to the date hereof and if
the filing of such materials with the Commission is a condition of the
relief granted in the PSA Letter, then in each such case such Underwriter
delivered four copies of such materials to counsel for the Company on
behalf of the Company at the address specified in Section 13 hereof and one
copy of such materials to the Company no later than 10:30 a.m., New York
City time, on the first business day following the date on which such
materials were initially provided to a potential investor;
(ii) the Computational Materials (either in original, aggregated
or consolidated form), Collateral Term Sheets and ABS Term Sheets furnished
to the Company pursuant to Section 11(a) or as contemplated in Section
11(b)(i) constitute all
20
of the materials furnished to prospective investors by such Underwriter
(whether in written, electronic or other format) prior to the time of
delivery thereof to the Company with respect to the Securities in
accordance with the No-Action Letters, and such Computational Materials,
Collateral Term Sheets and ABS Term Sheets comply with the requirements of
the No-Action Letters;
(iii) except as resulting directly from any Collateral Error, on
the respective dates any such Computational Materials, Collateral Term
Sheets and/or ABS Term Sheets with respect to the Securities were last
furnished to each prospective investor by such Underwriter and on the date
of delivery thereof to the Company pursuant to this Section 11 and on the
Closing Date, such Computational Materials, Collateral Term Sheets and/or
ABS Term Sheets did not and will not include any untrue statement of a
material fact, or, when read in conjunction with the Final Prospectus, omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading;
(iv) all Computational Materials, Collateral Term Sheets and ABS
Term Sheets prepared by such Underwriter contained and will contain a
legend, prominently displayed on the first page thereof, to the effect that
the Company has not prepared, reviewed or participated in the preparation
of such Computational Materials, Collateral Term Sheets or ABS Term Sheets,
is not responsible for the accuracy thereof and has not authorized the
dissemination thereof;
(v) all Collateral Term Sheets with respect to the Securities
furnished to potential investors by such Underwriter contained and will
contain a legend, prominently displayed on the first page thereof,
indicating that the information contained therein will be superseded by the
description of the Mortgage Loans contained in the Final Prospectus and,
except in the case of the initial Collateral Term Sheet, that such
information supersedes the information in all prior Collateral Term Sheets;
and
(vi) on and after the date hereof, such Underwriter shall not
deliver or authorize the delivery of any Computational Materials,
Collateral Term Sheets, ABS Term Sheets or other materials relating to the
Securities (whether in written, electronic or other format) to any
potential investor unless such potential investor has received a Final
Prospectus prior to or at the same time as the delivery of such
Computational Materials, Collateral Term Sheets, ABS Term Sheets or other
materials, provided, however, that any Underwriter may deliver or authorize
the delivery to any prospective investor copies of any Computational
Materials, Collateral Term Sheets, ABS Term Sheets or other materials
theretofore filed with the Commission prior to the delivery of a Final
Prospectus to such investor.
Notwithstanding the foregoing, the Underwriters make no representation or
warranty as to whether any Computational Materials, Collateral Term Sheets or
ABS Term Sheets included or will include any untrue statement resulting directly
from any Collateral Error (except any Corrected Collateral Error, with respect
to materials prepared after the receipt by the Underwriter from the Company of
notice of such Corrected Collateral Error or materials superseding or correcting
such Collateral Error).
21
(c) Each Underwriter acknowledges and agrees that the Company has not
authorized and will not authorize the distribution of any Computational
Materials, Collateral Term Sheets or ABS Term Sheets to any prospective
investor, and agree that any Computational Materials, Collateral Term Sheets or
ABS Term Sheets with respect to the Securities furnished to prospective
investors shall include a disclaimer in the form set forth in paragraph (b)(v)
above. Each Underwriter agrees that they will not represent to investors that
any Computational Materials, Collateral Term Sheets and/or ABS Term Sheets were
prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, it shall be necessary to amend or
supplement the Final Prospectus as a result of an untrue statement of a material
fact contained in any Computational Materials, Collateral Term Sheets or ABS
Term Sheets provided by the Underwriters pursuant to this Section 11 or the
omission to state therein a material fact required, when considered in
conjunction with the Final Prospectus, to be stated therein or necessary to make
the statements therein, when read in conjunction with the Final Prospectus, not
misleading, or if it shall be necessary to amend or supplement any Current
Report to comply with the Act or the rules thereunder, the Underwriters, at
their expense, promptly will prepare and furnish to the Company for filing with
the Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Each Underwriter,
severally and not jointly, represents and warrants to the Company, as of the
date of delivery of such amendment or supplement to the Company, that such
amendment or supplement will not include any untrue statement of a material fact
or, when read in conjunction with the Final Prospectus, omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Company shall have no obligation to file such amendment or
supplement if the Company determines that (i) such amendment or supplement
contains any untrue statement of a material fact or, when read in conjunction
with the Final Prospectus, omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to review or pass
upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by the Underwriters to the Company pursuant to this
paragraph (d) or (ii) such filing is not required under the Act.
(e) Each Underwriter (at its own expense) further agrees to provide to
the Company any accountants' letters obtained relating to the Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets, which accountants'
letters shall be addressed to the Company or shall state that the Company may
rely thereon; provided that the Underwriters shall have no obligation to procure
such letter.
(f) Notwithstanding the forgoing, Information included in or
constituting a Free Writing Prospectus will not be subject to or be required to
be filed pursuant to this Section 11.
12. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Company prior to
delivery of and payment for the Securities, if prior to such time (i) trading in
securities generally on the New York Stock
22
Exchange shall have been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall have been declared
by Federal or state authorities or (iii) there shall have occurred any outbreak
or material escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the reasonable judgment of the Underwriters, impracticable to market the
Securities.
13. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Underwriters set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of any Underwriter or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Securities. The provisions of Sections 7
and 8 hereof and this Section 13 shall survive the termination or cancellation
of this Agreement.
14. Notices. All communications hereunder will be in writing and effective
only on receipt, and, if sent to the Underwriters, will be mailed, delivered or
telegraphed and confirmed to them, at the address specified in Schedule I
hereto, with a copy to: Xxxxxxx Xxxxxxxx & Xxxx LLP, Two World Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxxxx, Esquire; or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it at
0000 Xxxx Xxxxxxxx Xxxxxxx, Xxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx
Xxxxxxxxxxx, with a copy to: Hunton & Xxxxxxxx LLP, 000 Xxxx Xxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxx, Esquire.
15. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
16. Applicable Law. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (BUT WITH REFERENCE TO SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH BY ITS TERMS APPLIES TO
THIS AGREEMENT).
17. Miscellaneous.
(a) This Agreement supersedes all prior or contemporaneous agreements
and understandings relating to the subject matter hereof.
(b) Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated except by a writing signed by the party against whom
enforcement of such change, waiver, discharge or termination is sought.
23
(c) This Agreement may be signed in any number of counterparts each of
which shall be deemed an original, which taken together shall constitute one and
the same instrument.
(d) The headings of the Sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of this
Agreement.
18. [Reserved].
19. Nonpetition Covenant. Notwithstanding any prior termination of this
Agreement, each Underwriter agrees that it shall not acquiesce, petition or
otherwise invoke or cause the Company or the Trust to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Company or the Trust under any federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Company or the
Trust or any substantial part of the property of either, or ordering the winding
up or liquidation of the affairs of the Company or the Trust.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
24
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and each Underwriter.
VERY TRULY YOURS,
FREMONT MORTGAGE SECURITIES CORPORATION
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxxx
Title: Vice President
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
CREDIT SUISSE FIRST BOSTON LLC BARCLAYS CAPITAL INC.
By: /s/ Xxxxx Xxxxxxxx By: /s/ Xxxx Xxxxxxx
--------------------------------- ------------------------------------
Name: Xxxxx Xxxxxxxx Name: Xxxx Xxxxxxx
Title: Director Title: Associate Director
DEUTSCHE BANK SECURITIES, INC. GREENWICH CAPITAL MARKETS, INC.
By: /s/ Xxxx X. Xxxxx By: /s/ Xxxxx Xxxxxx
--------------------------------- ------------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxx Xxxxxx
Title: Vice President Title: Managing Director
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
UBS SECURITIES LLC
By: /s/ Xxxxxxx Xxxxxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Associate Director
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director
Fremont 2005-E
Underwriting Agreement
SCHEDULE I
Underwriting Agreement dated December 8, 2005
Registration Statement No. 333-125587
Title: Fremont Home Loan Trust 2005-E, Mortgage-Backed Certificates, Series
2005-E
Depositories for Book-Entry Certificates: The Depository Trust Company
Closing Date, Time and Location: December 20, 2005, 10:00 a.m., New York City
time, Office of Hunton & Xxxxxxxx LLP, 000
Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000
Lead Manager: Credit Suisse First Boston LLC.
Underwriter Addresses: Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
Pricing Date: December 8, 2005
Schedule I-Page 1
SCHEDULE I
Description of the Securities:
INITIAL CERTIFICATE FORM OF
CERTIFICATES PRINCIPAL BALANCE INTEREST RATE(1) CERTIFICATES S&P* XXXXX'X** FITCH***
------------ ------------------- ---------------- ------------ ---- --------- --------
1-A $728,502,000 (1) Book-Entry AAA Aaa AAA
2-A-1 $332,658,000 (1) Book-Entry AAA Aaa AAA
2-A-2 $238,866,000 (1) Book Entry AAA Aaa AAA
2-A-3 $238,639,000 (1) Book Entry AAA Aaa AAA
2-A-4 $112,722,000 (1) Book Entry AAA Aaa AAA
M1 $ 86,742,000 (1) Book-Entry AA+ Aa1 AA+
M2 $ 80,154,000 (1) Book-Entry AA Aa2 AA
M3 $ 53,802,000 (1) Book-Entry AA Aa3 AA-
M4 $ 38,430,000 (1) Book-Entry AA- A1 A+
M5 $ 38,430,000 (1) Book-Entry A+ A2 A
M6 $ 34,038,000 (1) Book-Entry A+ A3 X-
X0 $ 34,038,000 (1) Book-Entry A Baa1 BBB+
M8 $ 25,254,000 (1) Book-Entry A- Baa2 BBB+
M9 $ 27,450,000 (1) Book-Entry BBB+ Baa3 BBB
B1 $ 25,254,000 (1) Book-Entry BBB Ba1 BBB-
----------
* Standard & Poor's, a division of The XxXxxx-Xxxx Companies, Inc
** Xxxxx'x Investor Service.
*** Fitch Ratings, Inc.
(1) During each interest accrual period, each class of certificates will accrue
interest at a variable rate equal to the lesser of (i) the lesser of (x)
one-month LIBOR as of the related LIBOR determination date plus the margin
rate per annum specified in the Pooling and Servicing Agreement for such
class and (y) the applicable maximum interest rate cap for such class and
(ii) the interest rate cap for the related distribution date, as further
described in the Pooling and Servicing Agreement. After the optional
termination date, the margin rate for certificates will increase as
provided for in the Pooling and Servicing Agreement.
Schedule I-Page 2
SCHEDULE I
ANNEX A
DISCLOSURE PACKAGE
1. Free Writing Prospectus, in the form of a Preliminary Prospectus, filed and
accepted by the SEC on December 7, 2005 with a filing date of December 8,
2005 and accession number 0000950129-05-011711.
2. Issuer Free Writing Prospectus, in the form of term sheets, to be filed
with the SEC under Rule 433 in connection with the transaction contemplated
in the Basic Documents.
3. Free Writing Prospectus, as a spreadsheet containing information on the
mortgage loans in the form of collateral tape information, to be filed with
the SEC under Rule 433 in connection with the transaction contemplated in
the Basic Documents.
4. Computational Materials, in the form of certain calculations and tables
related to the securities to be issued in connection with the transaction
contemplated in the Basic Documents, to be filed with the SEC under Form
8-K.
5. Computational Materials, in the form of certain collateral information and
tables, to be filed with the SEC under Form 8-K in connection with the
transaction contemplated in the Basic Documents.
Schedule I-Page 3
SCHEDULE II
CERTIFICATE PRICE TO UNDERWRITING PROCEEDS
CLASS SIZE CSFB (60%) BEAR (10%) BARCLAYS (10%) GCM (10%) UBS(10%) PUBLIC FEE TO DEPOSITOR
----- ------------ ----------- ---------- -------------- ---------- ---------- --------- ------------ ------------
1-A $728,502,000 437,101,200 72,850,200 72,850,200 72,850,200 72,850,200 100.00000% 0.25000% 99.75000%
2-A-1 $332,658,000 199,594,800 33,265,800 33,265,800 33,265,800 33,265,800 100.00000% 0.25000% 99.75000%
2-A-2 $238,866,000 143,319,600 23,886,600 23,886,600 23,886,600 23,886,600 100.00000% 0.25000% 99.75000%
2-A-3 $238,639,000 143,183,400 23,863,900 23,863,900 23,863,900 23,863,900 100.00000% 0.25000% 99.75000%
2-A-4 $112,722,000 67,633,200 11,272,200 11,272,200 11,272,200 11,272,200 100.00000% 0.25000% 99.75000%
M1 $ 86,742,000 52,045,200 8,674,200 8,674,200 8,674,200 8,674,200 100.00000% 0.25000% 99.75000%
M2 $ 80,154,000 48,092,400 8,015,400 8,015,400 8,015,400 8,015,400 100.00000% 0.25000% 99.75000%
M3 $ 53,802,000 32,281,200 5,380,200 5,380,200 5,380,200 5,380,200 100.00000% 0.25000% 99.75000%
M4 $ 38,430,000 23,058,000 3,843,000 3,843,000 3,843,000 3,843,000 100.00000% 0.25000% 99.75000%
M5 $ 38,430,000 23,058,000 3,843,000 3,843,000 3,843,000 3,843,000 100.00000% 0.25000% 99.75000%
M6 $ 34,038,000 20,422,800 3,403,800 3,403,800 3,403,800 3,403,800 100.00000% 0.25000% 99.75000%
M7 $ 34,038,000 20,422,800 3,403,800 3,403,800 3,403,800 3,403,800 100.00000% 0.25000% 99.75000%
M8 $ 25,254,000 15,152,400 2,525,400 2,525,400 2,525,400 2,525,400 99.21855% 0.25000% 98.96855%
M9 $ 27,450,000 16,470,000 2,745,000 2,745,000 2,745,000 2,745,000 95.42815% 0.25000% 95.17815%
TOTAL
CERTIFICATES
CERTIFICATE PRICE TO UNDERWRITING PROCEEDS
CLASS SIZE CSFB(100%) BEAR (0%) BARCLAYS (0%) GCM (0%) UBS(0%) PUBLIC FEE TO DEPOSITOR
----- ----------- ----------- --------- ------------- -------- -------- -------- ------------ ------------
B1 $25,254,000 $25,254,000 0 0 0 0 79.52993% 0.25000% 79.27993%
Fremont 2005-E
Underwriting Agreement
