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Exhibit 1.1
UNDERWRITING AGREEMENT
New York, New York
November 16, 2005
Barclays Capital Inc.
Bear, Stearns & Co. Inc.
Credit Suisse First Boston LLC
Greenwich Capital Markets, Inc.
Goldman, Sachs & Co.
UBS Securities LLC
Ladies and Gentlemen:
Fremont Mortgage
Securities Corporation, a Delaware corporation (the
"Company"), proposes to sell to the
underwriters named in Schedule II hereto
(collectively, the "Underwriters" and each,
an "Underwriter") the principal
amount of the Fremont Home Loan Trust
2005-D, Mortgage-Backed Certificates,
Series 2005-D, identified in Schedule I
hereto (the "Securities"), to be issued
under a pooling and servicing agreement, to
be dated as of November 1, 2005 (the
"Pooling and Servicing Agreement"), among
the Company, as depositor, Fremont
Investment & Loan, as 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").
Each class of
Securities listed in Schedule I hereto will represent an
undivided beneficial ownership interest in
the Fremont Home Loan Trust 2005-D
(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 November 1,
2005 (the "Mortgage Loan Purchase
Agreement"), between Fremont Investment & Loan
("Fremont") and the Company, and by the
Company to the Trust pursuant to the
Pooling and Servicing Agreement. This
Underwriting Agreement shall hereinafter
be referred to as the "Agreement." This
Agreement, the Pooling and Servicing
Agreement and the Mortgage Loan Purchase
Agreement are collectively hereinafter
referred to as the "Basic Documents."
Capitalized terms used herein and not
otherwise defined shall have the respective
meanings ascribed thereto in the
Pooling and Servicing Agreement.
1.
Representations and Warranties. The Company represents and warrants
to,
and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under
the
Securities Act of 1933, as amended (the
"Act"), and has filed with the
Securities and Exchange Commission (the
"Commission") a registration statement
on such form (the file number of which is
set forth in Schedule I hereto), which
has been declared effective by the
Commission, for the registration under the
Act of the Securities. Such registration
statement, as amended to the date of
this Agreement, meets the requirements set
forth in Rule 415(a)(1) under the Act
and complies
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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 reference herein
to the Registration Statement, the Base
Prospectus or the Final Prospectus 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
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 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 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.
(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 (A) the
information contained in or omitted from
the Registration Statement or the Final
Prospectus or any amendment thereof or
supplement thereto in reliance upon and
in conformity with information furnished in
writing to the Company by or on
behalf of any Underwriter through the lead
manager specified in Schedule I
hereto (the "Lead Manager") specifically
for use in connection with the
preparation of the Registration Statement
and the Final Prospectus or (B) the
information contained in the Current Report
(as defined in Section 5(b) below),
or in any amendment thereof or supplement
thereto, incorporated by reference in
the Registration Statement or the Final
Prospectus (or any amendment thereof or
supplement thereto), except to the extent
that such information is Pool
Information as defined herein.
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(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 will conform to
the
description thereof contained in the
Registration Statement and the Final
Prospectus; 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 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
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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
Base Prospectus and the Final
Prospectus, 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.
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(p) The properties and businesses of the Company conform, and
will
conform, in all material respects, to the
descriptions thereof contained in the
Base Prospectus and the Final
Prospectus.
(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
register the Securities under the
Securities Act of 1933, as amended (the
"Securities Act") or to qualify the Pooling
and Servicing Agreement under the
Trust Indenture Act of 1939, as amended
(the "1939 Act").
2. Purchase and
Sale. Subject to the terms and conditions and in reliance
upon the representations and warranties
herein set forth, the Company agrees to
sell to each Underwriter, and each
Underwriter agrees to purchase, severally but
not jointly, from the Company, at the
purchase price set forth in Schedule II
hereto, the principal amount or percentage
interest of the Securities set forth
opposite such Underwriter's name
therein.
3. Delivery and
Payment. Delivery of and payment for the Securities shall
be made at the office, on the date and at
the time specified in Schedule I
hereto, which date and time may be
postponed by agreement between the
Underwriters and the Company or as provided
in Section 9 hereof (such date and
time of delivery and payment for the
Securities being herein called the "Closing
Date"). Delivery of the Securities shall be
made to the Underwriters for their
respective accounts against payment by the
Underwriters of the purchase price
thereof in the manner set forth in Schedule
II hereto. If Schedule I indicates
that the Securities are to be issued in
book-entry form, delivery of the
Securities shall be made through the
facilities of the depository or
depositories set forth on Schedule I.
Alternatively, certificates for the
Securities shall be registered in such
names and in such denominations as the
Underwriters may request not less than
three full business days in advance of
the Closing Date.
The Company
agrees to have the Securities available for inspection,
checking and packaging by the Underwriters
in New York, New York, not later than
1:00 p.m., New York City time, on the
business day prior to the Closing Date.
4. Offering by
the Underwriters. It is understood by the parties hereto
that, after the Registration Statement
becomes effective, the Underwriters
propose to offer the Securities for sale to
the public (which may include
selected dealers) as set forth in the Final
Prospectus.
5. Agreements.
The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities,
the
Company will not file any amendment of the
Registration Statement or supplement
(including the Final Prospectus) to the
Base Prospectus unless the Company has
furnished to each Underwriter a copy for
its review prior to filing and will not
file any such proposed amendment or
supplement to which such Underwriter
reasonably objects. Subject to the
foregoing sentence, the Company
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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.
(b) The Company will cause any Computational Materials,
Collateral
Term Sheets and ABS Term Sheets (each as
defined in Section 10 below) with
respect to the Securities that are
delivered by the Underwriters to the Company
pursuant to Section 10 to be filed with the
Commission on a Current Report on
Form 8-K (the "Current Report") pursuant to
Rule 13a-11 under the Exchange Act
not later than the business day immediately
following the day on which such
Computational Materials, Collateral Term
Sheets or ABS Term Sheets are delivered
to counsel for the Company by the
Underwriters as provided in Section 10, and
will promptly advise the Underwriters when
such Current Report has been so
filed. Such Current Report shall be
incorporated by reference in the Final
Prospectus and the Registration Statement.
Notwithstanding the two preceding
sentences, the Company shall have no
obligation to file materials provided by
the Underwriters pursuant to Section 10
which, in the reasonable determination
of the Company after making reasonable
efforts to consult with the Underwriters,
are not required to be filed pursuant to
the No-Action Letters (as defined in
Section 10 below), or which contain
erroneous information or contain any untrue
statement of a material fact or, which,
when read in conjunction with the Final
Prospectus, omit to state a material fact
required to be stated therein or
necessary to make the statements therein
not misleading; it being understood,
however, that the Company shall have no
obligation to review or pass upon the
accuracy or adequacy of, or to correct, any
Computational Materials, Collateral
Term Sheets or ABS Term Sheets provided by
the Underwriters to the Company
pursuant to Section 10 hereof.
(c) If, at any time when a prospectus relating to the Securities
is
required to be delivered under the Act, any
event occurs as a result of which
the Final Prospectus as then amended or
supplemented would include any untrue
statement of a material fact or omit to
state any material fact necessary to
make the statements therein, in light of
the circumstances under which they were
made, not misleading, or if it shall be
necessary to amend or supplement the
Final Prospectus to comply with the Act or
the Exchange Act or the respective
rules thereunder, the Company promptly will
prepare and file with the
Commission, subject to the first sentence
of paragraph (a) of this Section 5, an
amendment or supplement which will correct
such statement or omission or an
amendment which will effect such compliance
and will use its best efforts to
cause any required post-effective amendment
to the Registration Statement
containing such amendment to be made
effective as soon as possible; provided,
however, that the Company will not be
required to file any such amendment or
supplement with respect to any
Computational Materials incorporated by reference
in the Final Prospectus other than any
amendments or
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supplements of such Computational Materials
that are furnished to the Company
pursuant to Section 10(d) hereof which the
Company determines to file in
accordance therewith.
(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, so long as delivery of a
prospectus by the Underwriters or dealer
may be required by the Act, as many
copies of the Final Prospectus and any
amendments thereof and supplements
thereto (other than exhibits to the related
Current Report) as the Underwriters
may reasonably request. The Company will
pay the expenses of printing all
documents relating to the initial offering,
provided that any additional
expenses incurred in connection with the
requirement of delivery of a
market-making prospectus, if required, will
be borne by the Underwriter
delivering a market-making prospectus.
(e) The Company will furnish such information as may be required
and
otherwise cooperate in qualifying the
Securities for sale under the laws of such
jurisdictions as the Underwriters may
reasonably designate and to maintain such
qualifications in effect so long as
required for the distribution of the
Securities; provided, however, that the
Company shall not be required to qualify
to do business in any jurisdiction where it
is not now so qualified or to take
any action which would subject it to
general or unlimited service of process in
any jurisdiction where it is not now so
subject.
(f)
The Company will pay all expenses (including fees of counsel
for
the Underwriters, except as provided
herein) incident to the performance of the
obligations under this Agreement,
including:
(i) the word processing, printing and filing of the
Registration
Statement as
originally filed and of each amendment thereto;
(ii) the reproduction of this Agreement;
(iii) the preparation, printing, issuance and delivery of the
Securities to
the Underwriters;
(iv) the fees and disbursements of counsel and accountants for
the Company;
(v) the qualification of the Securities under securities laws
in
accordance with
the provisions of Section 5(e) hereof, including filing
fees and the
reasonable fees and disbursements of counsel for the
Underwriters in
connection therewith and in connection with the preparation
of a blue sky
survey, if requested by the Underwriters;
(vi) if requested by the Underwriters, the determination of the
eligibility of
the Securities for investment and the reasonable fees and
disbursements of
counsel for the Underwriters in connection therewith and
in connection
with the preparation of a legal investment memorandum;
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(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 is an
arm's-length commercial transaction between the Company, on
the one hand,
and the several Underwriters, on the other;
(ii) in connection therewith and with the process leading to
such
transaction each
Underwriter is acting solely as a principal and not the
agent or
fiduciary of the Company
(iii) no Underwriter has assumed an advisory or fiduciary
responsibility
in favor of the Company with respect to the offering
contemplated
hereby or the process leading thereto (irrespective of whether
such Underwriter
has advised or is currently advising the Company on other
matters) or any
other obligation to the Company except the obligations
expressly set
forth in this Agreement; and
(iv) the Company has consulted its own legal and financial
advisors to the
extent it deemed appropriate.
The Company
agrees that it will not claim that the Underwriters, or any of
them, has rendered advisory services of any
nature or respect, or owes a
fiduciary or similar duty to the Company,
in connection with such transaction or
the process leading thereto.
6. Conditions
Precedent to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase
the Securities shall be subject to
the accuracy of the representations and
warranties on the part of the Company
contained herein as of the date hereof, as
of the date of the effectiveness of
any amendment to the Registration Statement
filed prior to the Closing Date
(including the filing of any document
incorporated by reference therein) and as
of the Closing Date, to the accuracy of the
statements of the Company made in
any certificates delivered pursuant to the
provisions hereof, to the performance
by the Company of its obligations hereunder
and to the following additional
conditions:
(a) The Underwriters shall have received from Deloitte &
Touche, a
letter dated the date hereof confirming
that they are independent public
accountants within the
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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.
(b) All actions required to be taken and all filings required to
be
made by the Company under the Act prior to
the sale of the Securities shall have
been duly taken or made. At and prior to
the Closing Date, no stop order
suspending the effectiveness of the
Registration Statement shall have been
issued and no proceedings for that purpose
shall have been instituted or, to the
knowledge of the Company or the
Underwriters, shall be contemplated by the
Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there
shall not have occurred (i) any change, or
any development involving a
prospective change, in or affecting
particularly the business or properties of
the Company or the Servicer which, in the
reasonable judgment of the
Underwriters, materially impairs the
investment quality of the Securities; (ii)
any downgrading in the rating of the
securities of the Company by any
"nationally recognized statistical rating
organization" (as such term is defined
for purposes of Rule 436(g) under the Act),
or any public announcement that any
such organization has under surveillance or
review its rating of any securities
of the Company (other than an announcement
with positive implications of a
possible upgrading, and no implication of a
possible downgrading, of such
rating); (iii) any suspension or limitation
of trading in securities generally
on the New York Stock Exchange, or any
setting of minimum prices for trading on
such exchange; (iv) any banking moratorium
declared by federal, New York or
California authorities; or (v) any outbreak
or escalation of major hostilities
in which the United States is involved, any
declaration of war by Congress or
any other substantial national or
international calamity or emergency if, in the
reasonable judgment of the Underwriters,
the effects of any such outbreak,
escalation, declaration, calamity or
emergency makes it impractical or
inadvisable to proceed with completion of
the sale of and payment for the
Securities.
(d) The Underwriters shall have received a favorable opinion of
Hunton
& Williams 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
