New York, New York
December 5, 2006
Goldman, Sachs
& Co.
Barclays Capital Inc.
Deutsche Bank Securities Inc.
Greenwich Capital Markets, Inc.
Lehman Brothers Inc.
Keefe, Bruyette and Woods, Inc.
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-E,
Mortgage-Backed Certificates, Series 2006-E, identified in
Schedule I hereto for each Underwriter (the
“Securities”), to be issued under a pooling and
servicing agreement, to be dated as of December 1, 2006 (the
“Pooling and Servicing Agreement”), among the Company,
as depositor, Fremont Investment & Loan, as sponsor, originator
and servicer (the “Servicer”), Wells Fargo Bank, N.A.,
as master servicer, trust administrator and swap 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 will represent
an undivided beneficial ownership interest in the Fremont Home Loan
Trust 2006-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, 2006 (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.”
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
Fremont
2006-E
Underwriting Agreement
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 (the
“Pricing Date”), the Company had prepared the following
information: the Preliminary Prospectus, if any, each “issuer
free writing prospectus” (as defined in Rule 433(h) under the
Act, each an “Issuer Free Writing Prospectus”) and any
other “free-writing prospectus” (as defined in
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
Certificates at the applicable Pricing Date for the Certificates,
including any Issuer Free Writing Prospectus and any static pool
information as contemplated by Item 1105 of Regulation AB
under the Act and referred to in such Disclosure Package and,
solely with respect to the Class M9 Certificates, the
Prospectus Supplement dated as of December 5, 2006 relating to
the Underwritten Certificates. 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 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).
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 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
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 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.
(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 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 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(d) under the 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 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.
(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;
(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 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 any of the Underwriters 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 (including any static pool information for
2006 or later contained therein), 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) At
or after the Pricing Date, 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)&
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