Exhibit 1.1
EXECUTION COPY
UNDERWRITING AGREEMENT
New York, New York
August 26, 2004
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Greenwich Capital Markets
Credit Suisse First Boston LLC
▇▇▇▇▇▇ Brothers Inc.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
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 2004-C, Asset-Backed Certificates, Series
2004-C, identified in Schedule I hereto (the "Securities"), to be issued under a
pooling and servicing agreement, to be dated as of August 1, 2004 (the "Pooling
and Servicing Agreement"), among the Company, as depositor, Fremont Investment &
Loan, as servicer (the "Servicer"), ▇▇▇▇▇ Fargo Bank, N.A., as master servicer
(the "Master Servicer") and trust administrator (the "Trust Administrator") and
HSBC Bank USA, National Association, as trustee (the "Trustee").
Each class of Securities listed in Schedule I hereto will represent an
undivided beneficial ownership interest in the Fremont Home Loan Trust 2004-C
(the "Trust"). The assets of the Trust will include, among other things, a pool
of conventional adjustable rate, one- to four-family first lien residential
mortgage loans (the "Mortgage Loans") transferred to the Company pursuant to a
mortgage loan purchase agreement, dated as of August 1, 2004 (the "Mortgage Loan
Purchase Agreement"), between Fremont Investment & Loan ("Fremont") and the
Company, and by the Company to the Trust pursuant to the Pooling and Servicing
Agreement. This Underwriting Agreement shall hereinafter be referred to as the
"Agreement." This Agreement, the Pooling and Servicing Agreement and the
Mortgage Loan Purchase Agreement are collectively hereinafter referred to as the
"Basic Documents." Capitalized terms used herein and not otherwise defined shall
have the respective meanings ascribed thereto in the Pooling and Servicing
Agreement.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"), and has filed with the
Securities and Exchange Commission (the "Commission") a registration statement
on such form (the file number of which is set forth in Schedule I hereto), which
has been declared effective by the Commission, for the registration under the
Act of the Securities. Such registration statement, as amended to the date of
this Agreement, meets the requirements set forth in Rule 415(a)(1) under the Act
and complies in all other material respects with said Rule. The Company proposes
to file with the
Commission pursuant to Rule 424 under the Act a supplement to the form of
prospectus included in such registration statement relating to the Securities
and the plan of distribution thereof and has previously advised the Underwriters
of all further information (financial and other) with respect to the Company to
be set forth therein. Such registration statement, including the exhibits
thereto, as amended to the date of this Agreement, is hereinafter called the
"Registration Statement"; such prospectus in the form in which it appears in the
Registration Statement is hereinafter called the "Base Prospectus"; and such
supplemented form of prospectus, in the form in which it shall be filed with the
Commission pursuant to Rule 424 (including the Base Prospectus as so
supplemented) is hereinafter called the "Final Prospectus." Any 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.
(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
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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 Securities will conform to the
description thereof contained in the Registration Statement and the Final
Prospectus; 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 of 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
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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.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees to purchase,
severally but not jointly, from the Company, at the purchase price set forth in
Schedule II hereto, the principal amount or percentage interest of the
Securities set forth opposite such Underwriter's name therein.
3. Delivery and Payment. Delivery of and payment for the Securities
shall be made at the office, on the date and at the time specified in Schedule I
hereto, which date and time may be postponed by agreement between the
Underwriters and the Company or as provided in Section 9 hereof (such date and
time of delivery and payment for the Securities being herein called the "Closing
Date"). Delivery of the Securities shall be made to the Underwriters for their
respective accounts against payment by the Underwriters of the purchase price
thereof in the manner set forth in Schedule II hereto. If Schedule I indicates
that the Securities are to be issued in book-entry form, delivery of the
Securities shall be made through the facilities of the depository or
depositories set forth on Schedule I. Alternatively, certificates for the
Securities shall be registered in such names and in such denominations as the
Underwriters may request not less than three full business days in advance of
the Closing Date.
The Company agrees to have the Securities available for inspection,
checking and packaging by the Underwriters in New York, New York, not later than
1:00 p.m., New York City time, on the business day prior to the Closing Date.
4. Offering by the Underwriters. It is understood by the parties hereto
that, after the Registration Statement becomes effective, the Underwriters
propose to offer the Securities for sale to the public (which may include
selected dealers) as set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or supplement
(including the Final Prospectus) to the Base Prospectus unless the Company has
furnished to each Underwriter a copy for its review prior to filing and will not
file any such proposed amendment or supplement to which such Underwriter
reasonably objects. Subject to the foregoing sentence, the Company will cause
the Final Prospectus to be filed with the Commission pursuant to Rule 424. The
Company will advise the Underwriters promptly (i) when the Final Prospectus
shall have been filed with the Commission pursuant to Rule 424, (ii) when any
amendment to the Registration 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
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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 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
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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 (other than fees of counsel
for the Underwriters, except as provided herein) incident to the performance of
the obligations under this Agreement, including:
(i) the word processing, printing and filing of the
Registration Statement as originally filed and of each amendment thereto;
(ii) the reproduction of this Agreement;
(iii) the preparation, printing, issuance and delivery of the
Securities to the Underwriters;
(iv) the fees and disbursements of counsel and accountants for
the Company;
(v) the qualification of the Securities under securities laws
in accordance with the provisions of Section 5(e) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the
preparation of a blue sky survey, if requested by the Underwriters;
(vi) if requested by the Underwriters, the determination of
the eligibility of the Securities for investment and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith
and in connection with the preparation of a legal investment memorandum;
(vii) the printing and delivery to the Underwriters of copies
of the Registration Statement as originally filed and of each amendment
thereto, of the preliminary prospectuses, and of the Base Prospectus and
Final Prospectus and any amendments or supplements thereto;
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(viii) if requested by the Underwriters, the printing and
delivery to the Underwriters of copies of any blue sky or legal investment
memorandum;
(ix) the fees of any rating agency rating the Securities; and
(x) the fees and expenses of the Trustee and the Servicer and
their counsel.
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 each of Ernst & Young
LLP and KPMG LLP, a letter 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.
(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.
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(d) The Underwriters shall have received a favorable opinion of
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 & ▇▇▇▇▇▇▇▇ LLP, special tax counsel for the Company, addressed to the
Underwriters, dated the Closing Date and reasonably satisfactory in form and
substance to the Underwriters, generally to the effect that (i) the information
in the Base Prospectus under "Federal Income Tax Consequences" and in the Final
Prospectus under "Material 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, and the
portion of the Trust exclusive of such REMICs will constitute a grantor trust
for federal income tax purposes, pursuant to Section 860D of the Internal
Revenue Code of 1986 (the "Code"), as of the Closing Date and will continue to
qualify as one or more REMICs and as a grantor trust for so long as the Trust
continues to meet the requirements set forth in the Code and applicable Treasury
regulations.
(f) The Underwriters shall have received a favorable opinion of
Hunton & ▇▇▇▇▇▇▇▇ 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 & ▇▇▇▇▇▇▇▇ 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 Underwriters shall have received a favorable opinion of
in-house counsel to Financial Guaranty Insurance Company 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.
(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 the Master Servicer and the Trust Administrator, addressed to the
Underwriters, dated the Closing
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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 & ▇▇▇▇▇▇▇▇ 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 given the ratings set forth on Schedule I hereto.
(n) At the Closing Date, the Securities and the Pooling and
Servicing Agreement will conform in all material respects to the descriptions
thereof contained in the Final Prospectus.
(o) The Underwriters shall not have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statement or the
Final Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact or omits to state a fact which, in the opinion of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, is material and
is required to be stated therein or is necessary to make the statements therein
not misleading.
(p) All corporate proceedings and other legal matters relating to
the authorization, form and validity of this Agreement, the Pooling and
Servicing Agreement, the Securities, the Registration Statement and the Final
Prospectus, and all other legal matters relating to this Agreement and the
transactions contemplated hereby, shall be reasonably satisfactory in all
respects to counsel for the Underwriters, and the Company shall have furnished
to such counsel all documents and information that they may reasonably request
to enable them to pass upon such matters.
(q) At the Closing Date, the Underwriters shall have received from
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters, a letter
with respect to the Final Prospectus, in form and substance satisfactory to the
Underwriters.
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(r) 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 the Servicer.
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.
(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 Base Prospectus or
the Final Prospectus, 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, and agree to reimburse each such indemnified party for any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that (i) the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein (A) in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
specifically for use in connection with the preparation thereof or (B) in any
Current
11
Report or any amendment or supplement thereof, except to the extent that any
untrue statement or alleged untrue statement therein results (or is alleged to
have resulted) directly from an error (a "Collateral Error") in the information
concerning the Mortgage Loans furnished by the Company to any Underwriter in
writing or by electronic transmission that was used in the preparation of any
Computational Materials, Collateral Term Sheets or ABS Term Sheets included in
such Current Report (or amendment or supplement thereof) or material relating to
servicing procedures, (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 a copy of the Final Prospectus (or the Final Prospectus as
amended or supplemented) excluding documents incorporated therein by reference
at or prior to the confirmation of the sale of such Securities to such person 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 Collateral Error shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) from
whom the person asserting any loss, claim, damage or liability received any
Computational Materials, Collateral Term Sheets or ABS Term Sheets that were
prepared on the basis of such Collateral Error, if, prior to the time of
confirmation of the sale of the Securities to such person, the Company notified
such Underwriter in writing of the Collateral Error or provided in written or
electronic form information superseding or correcting such Collateral Error (in
any such case, a "Corrected Collateral Error"), and such Underwriter failed to
notify such person thereof or to deliver such person corrected Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets, as applicable. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors and its officers who sign the Registration Statement,
and each person who controls the Company within the meaning of either the Act or
the Exchange Act, to the same extent as the foregoing indemnity from the Company
to each Underwriter, but only with reference to (A) written information relating
to such Underwriter furnished to the Company by such Underwriter specifically
for use in the preparation of the documents referred to in the foregoing
indemnity, or (B) any Computational Materials, Collateral Term Sheets or ABS
Term Sheets furnished to the Company by or on behalf of such Underwriter
pursuant to Section 10 and incorporated by reference in the Registration
Statement or the Final Prospectus (except that no such indemnity shall be
available for any losses, claims, damages or liabilities, or actions in respect
thereof resulting from any Collateral Error, other than a Corrected Collateral
Error). This indemnity agreement will be in addition to any liability which the
Underwriters may otherwise have. The Company acknowledges that the statements
set forth in (i) the first sentence of the last paragraph on the front cover of
the Final Prospectus and (ii) in the fourth sentence of the second paragraph and
the second sentence of the third paragraph under the heading "Method of
Distribution" in the Final Prospectus constitute the only information furnished
in writing by or on behalf of the several Underwriters for inclusion in the
documents referred to in the foregoing indemnity (other than any Computational
Materials, Collateral Term Sheets or ABS Term Sheets furnished to the Company by
any Underwriter), and each Underwriter confirms that such statements are
correct.
12
(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).
(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.
13
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 Base
Prospectus, Final Prospectus, Computational Materials, Collateral Term Sheets,
ABS Term Sheets or other materials results from information prepared by the
Company on the one hand or the Underwriters on the other and that party's
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
Notwithstanding anything to the contrary in this paragraph (d), no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act or the Exchange
Act shall have the same rights to contribution as such Underwriter, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the preceding sentence of
this paragraph (d). Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this paragraph (d), notify such party or parties from
whom contribution may be sought, but the omission to so notify such party or
parties shall not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or otherwise than
under this paragraph (d).
Notwithstanding the provisions of this Section 8(d), no Underwriter shall
be required to contribute any amount in excess of the total underwriting
discounts and commissions deemed to have been received by such Underwriter in
the offering of the Securities.
9. Default by One or More of the Underwriters. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or Underwriters hereunder (the "Defaulted
Securities") and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the non-defaulting
Underwriter or Underwriters shall have the right, within 24 hours thereafter, to
make arrangements for one or more of the non-defaulting Underwriters, or any
other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the non-defaulting Underwriter or Underwriters shall not
have completed such arrangements within such 24-hour period, then the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth opposite their
names in Schedule II hereto bear to the aggregate amount of Securities set forth
opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event that the aggregate amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10% of the aggregate amount of Securities set forth in Schedule II
hereto, the remaining
14
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. Computational Materials and ABS Term Sheets.
(a) Not later than 10:30 a.m., New York City time, on a date no
later than four business days before delivery of the Final Prospectus to the
Underwriters, the Underwriters shall deliver to the Company five complete copies
of all materials provided by the Underwriters to prospective investors in the
Securities which constitute either (i) "Computational Materials" within the
meaning of the no-action letter dated May 20, 1994 issued by the Division of
Corporation Finance of the Commission to ▇▇▇▇▇▇, Peabody Acceptance Corporation
I, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Co. Incorporated, and ▇▇▇▇▇▇ Structured Asset Corporation
and the no-action letter dated May 27, 1994 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association
(together, the "▇▇▇▇▇▇ Letters") or (ii) "ABS Term Sheets" within the meaning of
the no-action letter dated February 17, 1995 issued by the Division of
Corporation Finance of the Commission to the Public Securities Association (the
"PSA Letter" and together with the ▇▇▇▇▇▇ Letters, the "No-Action Letters"), if
the filing of such materials with the Commission is a condition of the relief
granted in such letters. In the case of any such materials that constitute
"Collateral Term Sheets" within the meaning of the PSA Letter, if such
Collateral Term Sheets have not previously been delivered to the Company as
contemplated by Section 10(b)(i) below, five complete copies of such Collateral
Term Sheets shall be delivered by the Underwriters to the Company no later than
10:30 a.m., New York City time, on the first business day following the date on
which such Collateral Term Sheets were initially provided to a potential
investor. Each delivery of Computational Materials, Collateral Term Sheets
and/or ABS Term Sheets to the Company pursuant to this paragraph (a) shall be
effected by delivering four copies of such materials to counsel for the Company
on behalf of the Company at the address specified in Section 13 hereof and one
copy of such materials to the Company.
(b) Each Underwriter, severally and not jointly, represents and
warrants to and agrees with the Company, as of the date hereof and as of the
Closing Date, that:
(i) if such Underwriter has provided any Collateral Term
Sheets to potential investors in the Securities prior to the date hereof
and if the filing of such materials with the Commission is a condition of
the relief granted in the PSA Letter, then in each such case such
Underwriter delivered four copies of such materials to counsel for the
Company on behalf of the Company at the address specified in Section 13
hereof and one copy of such materials to the Company no later than 10:30
a.m., New York City time, on the first business day following the date on
which such materials were initially provided to a potential investor;
15
(ii) the Computational Materials (either in original,
aggregated or consolidated form), Collateral Term Sheets and ABS Term
Sheets furnished to the Company pursuant to Section 10(a) or as
contemplated in Section 10(b)(i) constitute all of the materials furnished
to prospective investors by such Underwriter (whether in written,
electronic or other format) prior to the time of delivery thereof to the
Company with respect to the Securities in accordance with the No-Action
Letters, and such Computational Materials, Collateral Term Sheets and ABS
Term Sheets comply with the requirements of the No-Action Letters;
(iii) except as resulting directly from any Collateral Error,
on the respective dates any such Computational Materials, Collateral Term
Sheets and/or ABS Term Sheets with respect to the Securities were last
furnished to each prospective investor by such Underwriter and on the date
of delivery thereof to the Company pursuant to this Section 10 and on the
Closing Date, such Computational Materials, Collateral Term Sheets and/or
ABS Term Sheets did not and will not include any untrue statement of a
material fact, or, when read in conjunction with the Final Prospectus,
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading;
(iv) all Computational Materials, Collateral Term Sheets and
ABS Term Sheets prepared by such Underwriter contained and will contain a
legend, prominently displayed on the first page thereof, to the effect
that the Company has not prepared, reviewed or participated in the
preparation of such Computational Materials, Collateral Term Sheets or ABS
Term Sheets, is not responsible for the accuracy thereof and has not
authorized the dissemination thereof;
(v) all Collateral Term Sheets with respect to the Securities
furnished to potential investors by such Underwriter contained and will
contain a legend, prominently displayed on the first page thereof,
indicating that the information contained therein will be superseded by
the description of the Mortgage Loans contained in the Final Prospectus
and, except in the case of the initial Collateral Term Sheet, that such
information supersedes the information in all prior Collateral Term
Sheets; and
(vi) on and after the date hereof, such Underwriter shall not
deliver or authorize the delivery of any Computational Materials,
Collateral Term Sheets, ABS Term Sheets or other materials relating to the
Securities (whether in written, electronic or other format) to any
potential investor unless such potential investor has received a Final
Prospectus prior to or at the same time as the delivery of such
Computational Materials, Collateral Term Sheets, ABS Term Sheets or other
materials, provided, however, that any Underwriter may deliver or
authorize the delivery to any prospective investor copies of any
Computational Materials, Collateral Term Sheets, ABS Term Sheets or other
materials theretofore files with the Commission prior to the delivery of a
Final Prospectus to such investor.
Notwithstanding the foregoing, the Underwriters make no representation or
warranty as to whether any Computational Materials, Collateral Term Sheets or
ABS Term Sheets included or will include any untrue statement resulting directly
from any Collateral Error (except any
16
Corrected Collateral Error, with respect to materials prepared after the receipt
by the Underwriter from the Company of notice of such Corrected Collateral Error
or materials superseding or correcting such Collateral Error).
(c) Each Underwriter acknowledges and agrees that the Company has
not authorized and will not authorize the distribution of any Computational
Materials, Collateral Term Sheets or ABS Term Sheets to any prospective
investor, and agree that any Computational Materials, Collateral Term Sheets or
ABS Term Sheets with respect to the Securities furnished to prospective
investors shall include a disclaimer in the form set forth in paragraph (b)(v)
above. Each Underwriter agrees that they will not represent to investors that
any Computational Materials, Collateral Term Sheets and/or ABS Term Sheets were
prepared or disseminated on behalf of the Company.
(d) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, it shall be necessary to amend or
supplement the Final Prospectus as a result of an untrue statement of a material
fact contained in any Computational Materials, Collateral Term Sheets or ABS
Term Sheets provided by the Underwriters pursuant to this Section 10 or the
omission to state therein a material fact required, when considered in
conjunction with the Final Prospectus, to be stated therein or necessary to make
the statements therein, when read in conjunction with the Final Prospectus, not
misleading, or if it shall be necessary to amend or supplement any Current
Report to comply with the Act or the rules thereunder, the Underwriters, at
their expense, promptly will prepare and furnish to the Company for filing with
the Commission an amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Each Underwriter,
severally and not jointly, represents and warrants to the Company, as of the
date of delivery of such amendment or supplement to the Company, that such
amendment or supplement will not include any untrue statement of a material fact
or, when read in conjunction with the Final Prospectus, omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading. The Company shall have no obligation to file such amendment or
supplement if the Company determines that (i) such amendment or supplement
contains any untrue statement of a material fact or, when read in conjunction
with the Final Prospectus, omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; it being
understood, however, that the Company shall have no obligation to review or pass
upon the accuracy or adequacy of, or to correct, any such amendment or
supplement provided by the Underwriters to the Company pursuant to this
paragraph (d) or (ii) such filing is not required under the Act.
(e) Each Underwriter (at its own expense) further agrees to provide
to the Company any accountants' letters obtained relating to the Computational
Materials, Collateral Term Sheets and/or ABS Term Sheets, which accountants'
letters shall be addressed to the Company or shall state that the Company may
rely thereon; provided that the Underwriters shall have no obligation to procure
such letter.
11. 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
17
on such Exchange, (ii) a banking moratorium shall have been declared by Federal
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.
12. 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 12 shall survive the termination or cancellation
of this Agreement.
13. 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: Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: F. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esquire; or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, with a copy to: Hunton & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esquire.
14. 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.
15. 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).
16. 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.
18
(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.
17. [Reserved].
18. Nonpetition Covenant. Notwithstanding any prior termination of this
Agreement, each Underwriter agrees that it shall not acquiesce, petition or
otherwise invoke or cause the Company or the Trust to invoke the process of any
court or government authority for the purpose of commencing or sustaining a case
against the Company or the Trust under any federal or state bankruptcy,
insolvency or similar law, or appointing a receiver, liquidator, assignee,
trustee, custodian, sequestrator or other similar official of the Company or the
Trust or any substantial part of the property of either, or ordering the winding
up or liquidation of the affairs of the Company or the Trust.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
19
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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President &
Chief Financial Officer
The foregoing Agreement is hereby confirmed and accepted as of the date
specified in Schedule I hereto.
BEAR, ▇▇▇▇▇▇▇ AND CO. INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Managing Director
GREENWICH CAPITAL MARKETS, INC. CREDIT SUISSE FIRST BOSTON LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
-------------------------------- ------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
Title: Senior Vice President Title: Director
▇▇▇▇▇▇ BROTHERS INC. ▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇ Taect By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------- ------------------------------
Name: /s/ ▇▇▇▇▇ Taect Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director Title: Managing Director
SCHEDULE I
Underwriting Agreement dated August 26, 2004
Registration Statement No. 333-91565
Title: Fremont Home Loan Trust 2004-C, Asset-Backed Certificates, Series 2004-C
Depositories for Book-Entry Certificates: The Depository Trust Company
Closing Date, Time and Location: August 31, 2004, 10:00 a.m., New York City
time, Office of Hunton & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Lead Manager: Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Underwriter Addresses: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Schedule I-Page 1
SCHEDULE I
Purchase Price and Description of the Securities:
FORM OF
CERTIFICATES PRINCIPAL BALANCE PASS THROUGH RATE(1) CERTIFICATES MOODYS* S&P**
------------ ----------------- -------------------- ------------ ------ -----
IA $312,595,000 Book-Entry Aaa AAA
IIA $112,714,000 Book-Entry Aaa AAA
IIA-2 $ 20,730,000 Book-Entry Aaa AAA
M-1 $ 33,349,000 Book-Entry Aa2 AA+
M-2 $ 9,727,000 Book-Entry Aa3 AA+
M-3 $ 18,064,000 Book-Entry A2 AA-
M-4 $ 9,726,000 Book-Entry A3 A+
M-5 $ 6,948,000 Book-Entry Baa1 A+
M-6 $ 5,558,000 Book-Entry Baa2 A
M-7 $ 5,557,000 Book-Entry ▇▇▇▇ ▇-
▇-▇ $ 8,338,000 ▇▇▇▇-▇▇▇▇▇ ▇▇▇ BBB
M-9 $ 4,168,000 Book-Entry NA BBB
-------------------------
* ▇▇▇▇▇'▇ Investor Service.
** Standard & Poor's, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
(1) During each interest accrual period, each class of certificates will accrue
interest at a variable rate equal to the lesser of (i) the lesser of (x)
one-month LIBOR as of the related LIBOR determination date plus the margin
rate per annum specified above for such class and (y) the applicable
maximum interest rate cap for such class and (ii) the applicable 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 II
Class IA Class IIA-1 Class IIA-2 M-1 M-2 M-3
Underwriter Certificates Certificates Certificates Certificates Certificates Certificates
----------- ------------ ------------ ------------ ------------ ------------ ------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $203,186,750 $ 73,264,100 $13,474,500 $21,676,850 $6,322,550 $11,741,600
Credit Suisse First Boston LLC $ 31,259,500 $ 11,271,400 $ 2,073,000 $ 3,334,900 $ 972,700 $ 1,806,400
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. $ 31,259,500 $ 11,271,400 $ 2,073,000 $ 3,334,900 $ 972,700 $ 1,806,400
Greenwich Capital Markets, Inc. $ 31,259,500 $ 11,271,400 $ 2,073,000 $ 3,334,900 $ 972,700 $ 1,806,400
▇▇▇▇▇▇ Brothers, Inc. $ 15,629,750 $ 5,635,700 $ 1,036,500 $ 1,667,450 $ 486,350 $ 903,200
------------ ------------ ----------- ----------- ---------- -----------
TOTAL $312,595,000 $112,714,000 $20,730,000 $33,349,000 $9,727,000 $18,064,000
============ ============ =========== =========== ========== ===========
M-4 M-5 M-6 M-7 M-8 M-9
Certificates Certificates Certificates Certificates Certificates Certificates
------------ ------------ ------------ ------------ ------------ ------------
Bear, ▇▇▇▇▇▇▇ & Co. Inc. $6,321,900 $4,516,200 $3,612,700 $3,612,050 $8,338,000 $4,168,000
Credit Suisse First Boston LLC $ 972,600 $ 694,800 $ 555,800 $ 555,700 -- --
▇▇▇▇▇▇▇, Sachs & Co. $ 972,600 $ 694,800 $ 555,800 $ 555,700 -- --
Greenwich Capital Markets, Inc. $ 972,600 $ 694,800 $ 555,800 $ 555,700 -- --
▇▇▇▇▇▇ Brothers, Inc. $ 486,300 $ 347,400 $ 277,900 $ 277,850 -- --
---------- ---------- ---------- ---------- ---------- ----------
TOTAL $9,726,000 $6,948,000 $5,558,000 $5,557,000 $8,338,000 $4,168,000
========== ========== ========== ========== ========== ==========
Schedule II-Page 1