UNDERWRITING AGREEMENT
EXHIBIT 1.1
UBS Securities LLC
Barclays Capital Inc.
Deutsche Bank Securities Inc.
Greenwich Capital Markets, Inc.
Xxxxxx Brothers Inc.
Xxxxx Xxxxxxxx and Xxxxx, Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxx & Xxxxxx, Inc.
Barclays Capital Inc.
Deutsche Bank Securities Inc.
Greenwich Capital Markets, Inc.
Xxxxxx Brothers Inc.
Xxxxx Xxxxxxxx and Xxxxx, Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxx & Xxxxxx, Inc.
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 2006-B, Mortgage-Backed
Certificates, Series 2006-B, identified in Schedule I hereto for each Underwriter (the
“Securities”), to be issued under a pooling and servicing agreement, to be dated as of August 1,
2006 (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”).
Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed
thereto in the Pooling and Servicing Agreement.
Each class of Securities listed in Schedule I hereto and identified as Pool I
Certificates will represent an undivided beneficial ownership interest in the Pool I Mortgage Loans
and each class of Securities listed in Schedule I hereto and identified as Pool II
Certificates will represent an undivided beneficial ownership interest in the Pool II Mortgage
Loans, in each case, transferred to the Fremont Home Loan Trust 2006-B (the “Trust”) by the Company
pursuant to the Pooling and Servicing Agreement. The Mortgage Loans were acquired by the Company
pursuant to a mortgage loan purchase agreement, dated as of August 1, 2006 (the “Mortgage Loan
Purchase Agreement”), between Fremont Investment & Loan (“Fremont”) and the Company. The Pool I
Mortgage Loans consist of a pool of conventional fixed and adjustable rate, one- to four-family,
first and second lien residential mortgage loans (the “Pool I Mortgage Loans”) and the Pool II
Mortgage Loans consist of a pool of conventional fixed rate, one- to four-family, second lien
residential mortgage loans (the “Pool II Mortgage Loans” and together with the Pool I Mortgage
Loans, the “Mortgage Loans”). 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.”
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 any class of Securities were first made, as
set forth in Schedule I hereto (with respect to the Pool I Certificates, the “Pool I
Pricing Date” and Pool II Certificates. the “Pool II Pricing Date” and together the “Pricing
Date”), the Company had prepared the following information relating to the Pool I Certificates or
Pool II Certificates, as appropriate: 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. “Disclosure Package” will refer to the information available to
purchasers of the Pool I Certificates or Pool II Certificates at the applicable Pricing Date for
the Pool I Certificates or Pool II Certificates, as appropriate. If, subsequent to the date of
this Agreement, the Company and the Underwriters have determined that any 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
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and have terminated their old purchase contracts and entered into new purchase contracts with
purchasers of one or more classes of Securities, then “Disclosure Package” will refer to the
information available to purchasers of the related classes 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 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 any Underwriter Information (as defined below).
Each Disclosure Package, at the related 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 Underwriter Information.
(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 and the Securities will conform to the
descriptions thereof contained in the Registration Statement, the Preliminary Prospectus, if any,
the Final Prospectus and the related 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 any 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 any 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 any 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
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capacity as such) has not made, used, prepared, authorized, approved or referred to and will
not make, use, prepare, authorize, approve or refer to any “written communication” (as defined in
Rule 405 under the 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 Packages, (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 manager specified in Schedule I hereto (the “Lead Manager”).
(u) Any Issuer Free Writing Prospectus included in any 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 on Schedule II.
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
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filed with the Commission pursuant to Rule 424, (ii) when any amendment to the Registration
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) [Reserved]
(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.
(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 as the Underwriters may reasonably request. The Company will pay the expenses
of printing all documents relating to the initial offering.
(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;
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(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;
(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, including the
determination of the offering price of the Securities and any related discounts and
commissions, is an arm’s-length commercial transaction between the Company, on the one hand,
and the several Underwriters, on the other, and the Company is capable of evaluating and
understanding and understands and accepts the terms, risks and conditions of the
transactions contemplated by this Agreement;
(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 or
its affiliates, stockholders, creditors, employees or any other party;
(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
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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 Underwriters have not provided any legal, accounting, regulatory or tax advice
with respect to the offering contemplated hereby and 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
each Disclosure Package, the Preliminary Prospectus, if any, and the Final Prospectus.
(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
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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 any Disclosure Package and 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 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 (1) any Disclosure Package, as of its
respective date and on the related Pricing Date, or (2) the Final Prospectus, as of its respective
date and the Closing 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.
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(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.
(m) On or before the Closing Date, the Underwriters shall have received evidence satisfactory
to the Underwriters that each class of Securities has been assigned 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
11
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 (1) any Disclosure Package, as of its respective date and on the related
Pricing Date, or (2) the Final Prospectus, as of its respective date and the Closing 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.
(t) At the Closing Date, the Swap Agreements shall have been duly executed and delivered by
the requisite parties, in form and substance reasonably satisfactory to the Underwriters and their
counsel.
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.
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.
12
(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 any 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 related Disclosure Package, was not corrected by the Corrective Information
subsequently supplied to the Underwriters at any time prior to the related 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 in reliance upon
and in conformity with any Underwriter Information or (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, 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) and (iii) such indemnity with respect to any
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 a copy of the related Disclosure Package
(or the related Disclosure Package as amended or supplemented by any Corrective Information) was
not delivered by the Underwriter to such person. 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)
Underwriter Information relating to such Underwriter furnished to the Company by such Underwriter
or (B) information included in Free Writing Prospectuses prepared by or on behalf of the
Underwriters (other than information constituting or included in Issuer Information or information
included in the related Disclosure Package) and 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
13
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 third sentence of the second paragraph
and the second sentence of the third paragraph under the heading “Method of Distribution” in the
Final Prospectus (the “Underwriter Information”) 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 each Underwriter confirms that such statements are correct.
(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
14
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
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, or other materials results from
information prepared by the Company and Issuer Information on the one hand or the Underwriter
Information 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).
15
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 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 that are
purchasing the Securities having the same Pool designation 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 for such Pool 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 of the related Pool as
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 or (3) constitutes a
Free Writing Prospectus.
(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 (taking into account the interpretation of such Rule as set forth in footnote 271 of Release
Numbers 33-8591, 34-52056, IC-26993 and FR-75, the “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
16
contains only ABS Informational and Computational Materials (as such term is defined in Item 1101 of
Regulation AB) 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 by such Underwriter 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.
(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 Materials 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
17
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 comply with the requirements under the Act (including, but not
limited to Rules 164 and 433) applicable to it regarding any Free Writing Prospectus relating to
the specific Securities to be sold to such Underwriters as set forth in Schedule I hereto
other than Issuer Free Writing Prospectuses, including filing with the Commission and/or record
retention when required.
(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) In the event that the Company or any Underwriter becomes aware that, as of the related
Pricing Date, any Free Writing Prospectus delivered to a purchaser or potential 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 this
Agreement 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) Each Underwriter shall deliver the Corrected Free Writing Prospectus to each
purchaser and/or potential purchaser of a Security that received the
18
Defective Free Writing Prospectus from such Underwriter prior to entering into an
agreement to purchase any Securities;
(iii) Each Underwriter 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;
(iv) Each Underwriter shall confirm, or reconfirm, as appropriate, the sale of any
Security only after the receipt by the purchaser of the Corrected Free Writing Prospectus.
(j) 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. [Reserved]
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
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.
19
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.
(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 (i) with respect to the Company, at any time prior to one year and one
day after the payment in full of the Securities or any similar securities sponsored by the Company
or (ii) with respect to the Trust, at any time prior to one year and one day after the payment in
full of the Securities, 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]
20
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 | |||
Fremont
2006-B
Underwriting Agreement
Underwriting Agreement
21
The foregoing Agreement is hereby confirmed and accepted as of the date specified in Schedule I hereto.
| USB SECURITIES LLC | BARCLAYS CAPITAL INC. | |||||||||||||
By:
|
/s/ Xxxxxxx Xxxxxxxxxxx | By: | /s/ Xxxxxx X’Xxxxxxx | |||||||||||
| Name: | Xxxxxxx Xxxxxxxxxxx | Name: | Xxxxxx X’Xxxxxxx | |||||||||||
| Title: | Director | Title: | Director | |||||||||||
By: |
/s/ Xxxxx Xxxxx | |||||||||||||
| Name: | Xxxxx Xxxxx | |||||||||||||
| Title: | Executive Director | |||||||||||||
| DEUTSCHE BANK SECURITIES INC. | GREENWICH CAPITAL MARKETS, INC. | |||||||||||||
By:
|
/s/ Xxxx Xxxxxx | By: | /s/ Xxx Xxxxxxxxxx | |||||||||||
| Name: | Xxxx Xxxxxx | Name: | Xxx Xxxxxxxxxx | |||||||||||
| Title: | Director | Title: | Vice President | |||||||||||
By: |
/s/ Xxxx X. Xxxxx | |||||||||||||
| Name: | Xxxx X. Xxxxx | |||||||||||||
| Title: | Director | |||||||||||||
| XXXXXX BROTHERS INC. | XXXXX, XXXXXXXX AND XXXXX, INC. | |||||||||||||
By:
|
/s/ Xxxxxxx Xxxxx | By: | /s/ Xxxx Xxxxxxx | |||||||||||
| Name: | Xxxxxxx Xxxxx | Name: | Xxxx Xxxxxxx | |||||||||||
| Title: | Senior Vice President | Title: | Managing Director | |||||||||||
| XXXXXXX, SACHS & CO. | XXXXXX & XXXXXX, INC. | |||||||||||||
By:
|
/s/ X. Xxxx | By: | /s/ Xxxx Bonnciorsi | |||||||||||
| (Xxxxxxx, Sachs & Co.) | Name: | Xxxx Bonnciorsi | ||||||||||||
| Title: | SVP | |||||||||||||
22
SCHEDULE I
Underwriting Agreement dated August 3, 2006 |
Registration Statement No. 333-132540 |
Title: Fremont Home Loan Trust 2006-B, Mortgage-Backed Certificates, Series 2006-B |
Depositories for Book-Entry Certificates: The Depository Trust Company |
Closing Date, Time and Location: August 3, 2006, 10:00 a.m., New York City
time, Office of Hunton & Xxxxxxxx LLP, 000 Xxxx Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000 |
Lead Manager: UBS Securities LLC. |
Underwriter Addresses: 0000 Xxxxxx xx Xxx Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 |
Pool I Certificate Pricing Date: July 28, 2006 |
Pool I Certificate Pricing Date: August 2, 2006 |
Schedule I-Page 1
SCHEDULE I
Description of the Securities:
| Initial | ||||||||||||||||||
| Certificate | ||||||||||||||||||
| Principal | Form of | |||||||||||||||||
| Certificates | Balance | Interest Rate | Certificates | S&P * | Xxxxx’x** | Fitch*** | DBRS**** | |||||||||||
1-A |
$ | 168,810,000 | (1) | Book-Entry | AAA | Aaa | AAA | AAA | ||||||||||
2-A-1 |
$ | 216,724,000 | (1) | Book-Entry | AAA | Aaa | AAA | AAA | ||||||||||
2-A-2 |
$ | 149,095,000 | (1) | Book-Entry | AAA | Aaa | AAA | AAA | ||||||||||
2-A-3 |
$ | 184,275,000 | (1) | Book-Entry | AAA | Aaa | AAA | AAA | ||||||||||
2-A-4 |
$ | 67,939,000 | (1) | Book-Entry | AAA | Aaa | AAA | AAA | ||||||||||
M-1 |
$ | 45,163,000 | (1) | Book-Entry | AA+ | Aa1 | AA+ | AA(high) | ||||||||||
M-2 |
$ | 31,614,000 | (1) | Book-Entry | AA | Aa2 | AA | AA | ||||||||||
M-3 |
$ | 18,567,000 | (1) | Book-Entry | AA- | Aa3 | AA- | AA(low) | ||||||||||
M-4 |
$ | 17,061,000 | (1) | Book-Entry | A+ | A1 | A+ | A(high) | ||||||||||
M-5 |
$ | 16,058,000 | (1) | Book-Entry | A | A2 | A | A | ||||||||||
M-6 |
$ | 15,054,000 | (1) | Xxxx-Xxxxx | X- | X0 | X- | X(xxx) | ||||||||||
M-7 |
$ | 14,552,000 | (1) | Book-Entry | BBB+ | Baa1 | BBB+ | BBB(high) | ||||||||||
M-8 |
$ | 12,544,000 | (1) | Book-Entry | BBB | Baa2 | BBB+ | BBB(high) | ||||||||||
M-9 |
$ | 9,534,000 | (1) | Book-Entry | BBB | Baa3 | BBB | BBB | ||||||||||
M-10 |
$ | 6,523,000 | (1) | Xxxx-Xxxxx | XXX- | Xx0 | XXX- | XXX(xxx) | ||||||||||
M-11 |
$ | 10,043,000 | (1) | Book-Entry | BB+ | Ba2 | BB+ | BBB(low) | ||||||||||
SL-A |
$ | 189,504,000 | (2) | Book-Entry | AAA | Aaa | AAA | AAA | ||||||||||
SL-M1 |
$ | 13,606,000 | (2) | Book-Entry | AA+ | Aa1 | AA+ | AA(high) | ||||||||||
SL-M2 |
$ | 12,189,000 | (2) | Book-Entry | AA | Aa2 | AA+ | AA(high) | ||||||||||
SL-M3 |
$ | 8,362,000 | (2) | Book-Entry | AA- | Aa3 | AA | AA | ||||||||||
SL-M4 |
$ | 7,370,000 | (2) | Book-Entry | A+ | A1 | AA- | AA(low) | ||||||||||
SL-M5 |
$ | 7,653,000 | (2) | Book-Entry | A | A2 | A+ | A(high) | ||||||||||
SL-M6 |
$ | 7,086,000 | (2) | Book-Entry | A- | A3 | A | A | ||||||||||
SL-M7 |
$ | 6,945,000 | (2) | Book-Entry | BBB+ | Baa1 | A- | A(low) | ||||||||||
SL-M8 |
$ | 6,519,000 | (2) | Book-Entry | BBB | Baa2 | BBB+ | BBB(high) | ||||||||||
SL-M9 |
$ | 5,811,000 | (2) | Book-Entry | BBB- | Baa3 | BBB+ | BBB(high) | ||||||||||
| * | Standard & Poor’s, a division of The XxXxxx-Xxxx Companies, Inc | |
| ** | Xxxxx’x Investor Service. | |
| *** | Fitch Ratings, Inc. | |
| **** | Dominion Bond Rating Service | |
| (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. | |
| (2) | During each interest accrual period, each class of certificates will accrue interest at a variable rate equal to the lesser of (i) 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 (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 PACKAGES
| 1. | Pool I Free Writing Prospectus, in the form of a Preliminary Prospectus, filed and accepted by the SEC on July 28, 2006. (“Pool I Disclosure Package”) | |
| 2. | Pool II Free Writing Prospectus, in the form of a Preliminary Prospectus, filed and accepted by the SEC on August 2, 2006. (Pool II Disclosure Package”) | |
| 3. | 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. |
Schedule I-Page 3
SCHEDULE II
UNDERWRITERS
POOL I
| UBS Securities LLC (“UBS”) 0000 Xxxxxx xx xxx Xxxxxxxx Xxx Xxxx, XX, 00000 |
Barclays Capital Inc. (“Barclays”) |
Deutsche Bank Securities, Inc (“DB”) |
Greenwich Capital Markets, Inc. (“GCM”) | Xxxxxx Brothers Inc (“Xxxxxx”) |
Xxxxx, Xxxxxxxx And Xxxxx, Inc. (“KBW”) |
| Class | Balance | UW Fee | UBS | Barclays | Deutsche | Greenwich | Xxxxxx | KBW | ||||||||||||||||||||||||
— |
— | 0.25 | % | 60 | % | 10 | % | 10 | % | 10 | % | 6 | % | 4 | % | |||||||||||||||||
1A |
$ | 168,810,000 | $ | 422,025 | $ | 253,215 | $ | 42,203 | $ | 42,203 | $ | 42,203 | $ | 25,322 | $ | 16,881 | ||||||||||||||||
2A1 |
$ | 216,724,000 | $ | 541,810 | $ | 325,086 | $ | 54,181 | $ | 54,181 | $ | 54,181 | $ | 32,509 | $ | 21,672 | ||||||||||||||||
2A2 |
$ | 149,095,000 | $ | 372,738 | $ | 223,643 | $ | 37,274 | $ | 37,274 | $ | 37,274 | $ | 22,364 | $ | 14,910 | ||||||||||||||||
2A3 |
$ | 184,275,000 | $ | 460,688 | $ | 276,413 | $ | 46,069 | $ | 46,069 | $ | 46,069 | $ | 27,641 | $ | 18,428 | ||||||||||||||||
2A4 |
$ | 67,939,000 | $ | 169,848 | $ | 101,909 | $ | 16,985 | $ | 16,985 | $ | 16,985 | $ | 10,191 | $ | 6,794 | ||||||||||||||||
M1 |
$ | 45,163,000 | $ | 112,908 | $ | 67,745 | $ | 11,291 | $ | 11,291 | $ | 11,291 | $ | 6,774 | $ | 4,516 | ||||||||||||||||
M2 |
$ | 31,614,000 | $ | 79,035 | $ | 47,421 | $ | 7,904 | $ | 7,904 | $ | 7,904 | $ | 4,742 | $ | 3,161 | ||||||||||||||||
M3 |
$ | 18,567,000 | $ | 46,418 | $ | 27,851 | $ | 4,642 | $ | 4,642 | $ | 4,642 | $ | 2,785 | $ | 1,857 | ||||||||||||||||
M4 |
$ | 17,061,000 | $ | 42,653 | $ | 25,592 | $ | 4,265 | $ | 4,265 | $ | 4,265 | $ | 2,559 | $ | 1,706 | ||||||||||||||||
M5 |
$ | 16,058,000 | $ | 40,145 | $ | 24,087 | $ | 4,015 | $ | 4,015 | $ | 4,015 | $ | 2,409 | $ | 1,606 | ||||||||||||||||
M6 |
$ | 15,054,000 | $ | 37,635 | $ | 22,581 | $ | 3,764 | $ | 3,764 | $ | 3,764 | $ | 2,258 | $ | 1,505 | ||||||||||||||||
M7 |
$ | 14,552,000 | $ | 36,380 | $ | 24,011 | $ | 3,638 | $ | 3,638 | $ | 3,638 | $ | 0 | $ | 1,455 | ||||||||||||||||
M8 |
$ | 12,544,000 | $ | 31,360 | $ | 18,816 | $ | 3,136 | $ | 3,136 | $ | 3,136 | $ | 1,882 | $ | 1,254 | ||||||||||||||||
M9 |
$ | 9,534,000 | $ | 23,835 | $ | 14,301 | $ | 2,384 | $ | 2,384 | $ | 2,384 | $ | 1,430 | $ | 953 | ||||||||||||||||
M10 |
$ | 6,523,000 | $ | 16,308 | $ | 10,763 | $ | 1,631 | $ | 1,631 | $ | 1,631 | $ | 0 | $ | 652 | ||||||||||||||||
M11 |
$ | 10,043,000 | $ | 25,108 | $ | 11,903 | $ | 2,511 | $ | 2,511 | $ | 2,511 | $ | 4,667 | $ | 1,004 | ||||||||||||||||
| $ | 983,556,000 | $ | 2,458,890 | $ | 1,475,334 | $ | 245,889 | $ | 245,889 | $ | 245,889 | $ | 147,533 | $ | 98,356 | |||||||||||||||||
| 60.00 | % | 10.00 | % | 10.00 | % | 10.00 | % | 6.00 | % | 4.00 | % | |||||||||||||||||||||
Distribution on all bonds except M-7, M-10 and M-11
| UBS | Barclays | Deutsche | Greenwich | Xxxxxx | KBW | |||||
60.00%
|
10.00% | 10.00% | 10.00% | 6.00% | 4.00% |
Distribution on M-7 and M-10
| UBS | Barclays | Deutsche | Greenwich | Xxxxxx | KBW | |||||
| 66.00% | 10.00% | 10.00% | 10.00% | 0.00% | 4.00% |
Distribution on M-11
| UBS | Barclays | Deutsche | Greenwich | Xxxxxx | KBW | |||||
| 47.41% | 10.00% | 10.00% | 10.00% | 18.59% | 4.00% |
POOL II
| UBS Securities LLC (“UBS”) 1285 Avenue of the Americas Xxx Xxxx, XX, 00000 |
Xxxxxxx, Sachs & Co, (“Goldman”) | Xxxxxx & Xxxxxx, Inc. (“H&A”) |
| Class | Balance | UW Fee | UBS | Goldman | H & A | |||||||||||||||
| 0.25 | % | 60 | % | 35 | % | 5 | % | |||||||||||||
SL-A |
$ | 189,504,000 | $ | 473,760 | $ | 284,256 | $ | 165,816 | $ | 23,688 | ||||||||||
SL-M1 |
$ | 13,606,000 | $ | 34,015 | $ | 20,409 | $ | 11,905 | $ | 1,701 | ||||||||||
SL-M2 |
$ | 12,189,000 | $ | 30,473 | $ | 18,284 | $ | 10,665 | $ | 1,524 | ||||||||||
SL-M3 |
$ | 8,362,000 | $ | 20,905 | $ | 12,543 | $ | 7,317 | $ | 1,045 | ||||||||||
SL-M4 |
$ | 7,370,000 | $ | 18,425 | $ | 11,055 | $ | 6,449 | $ | 921 | ||||||||||
SL-M5 |
$ | 7,653,000 | $ | 19,133 | $ | 11,480 | $ | 6,696 | $ | 957 | ||||||||||
SL-M6 |
$ | 7,086,000 | $ | 17,715 | $ | 10,629 | $ | 6,200 | $ | 886 | ||||||||||
SL-M7 |
$ | 6,945,000 | $ | 17,363 | $ | 10,418 | $ | 6,077 | $ | 868 | ||||||||||
SL-M8 |
$ | 6,519,000 | $ | 16,298 | $ | 9,779 | $ | 5,704 | $ | 815 | ||||||||||
SL-M9 |
$ | 5,811,000 | $ | 14,528 | $ | 8,717 | $ | 5,085 | $ | 726 | ||||||||||
SL-B1 |
$ | 6,236,000 | $ | 0 | $ | 0 | $ | 0 | $ | 0 | ||||||||||
| $ | 271,281,000 | $ | 662,613 | $ | 397,568 | $ | 231,914 | $ | 33,131 | |||||||||||
| 60.00 | % | 35.00 | % | 5.00 | % | |||||||||||||||
Distribution on SL-A through SL-M9
| UBS | Goldman | H & A | ||
60.00%
|
35.00% | 5.00% |
Distribution on SL-B1
| UBS | Goldman | H & A | ||
| 0.00% | 0.00% | 0.00% |
