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EXHIBIT 4.2
EXECUTION COPY
FREMONT MORTGAGE SECURITIES CORPORATION,
as Purchaser
and
FREMONT INVESTMENT & LOAN,
as Originator
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as
of February 1, 2005
Fixed-Rate and Adjustable-Rate Mortgage Loans
Fremont Home Loan Trust 2005-A,
Mortgage-Backed Certificates, Series 2005-A
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TABLE OF
CONTENTS
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PAGE
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ARTICLE I DEFINITIONS AND SCHEDULES
Section 1.01.
Definitions.................................................................................
1
ARTICLE II SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section 2.01. Sale of
Mortgage
Loans......................................................................
1
Section 2.02.
Obligations of the Originator Upon
Sale.....................................................
2
Section 2.03. Payment
of Purchase Price for the Mortgage
Loans............................................ 3
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section 3.01.
Originator's Representations and Warranties Relating to the
Mortgage Loans.................. 3
Section 3.02.
Additional Originator's Representations and
Warranties...................................... 3
Section 3.03. Remedies
for Breach of Representations and
Warranties....................................... 6
ARTICLE IV ORIGINATOR'S COVENANTS
Section 4.01.
Covenants of the
Originator.................................................................
9
ARTICLE V INDEMNIFICATION WITH RESPECT TO THE MORTGAGE LOANS
Section 5.01.
Indemnification.............................................................................
9
ARTICLE VI TERMINATION
Section 6.01.
Termination.................................................................................
10
ARTICLE VII MISCELLANEOUS PROVISIONS
Section 7.01.
Amendment...................................................................................
10
Section 7.02.
Governing
Law...............................................................................
10
Section 7.03.
Notices.....................................................................................
10
Section 7.02.
Severability of
Provisions..................................................................
11
Section 7.05.
Counterparts................................................................................
11
Section 7.06. Further
Agreements..........................................................................
11
Section 7.07.
Intention of the
Parties....................................................................
12
Section 7.08.
Successors and Assigns: Assignment of Purchase
Agreement................................... 13
Section 7.09.
Survival....................................................................................
13
Section 7.10. Third
Party
Beneficiaries...................................................................
13
Section 7.11.
Confidentiality.............................................................................
13
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Exhibit A:
Representations and Warranties Relating to the Mortgage Loans
Exhibit B: Appendix E
of the Standard & Poor's Glossary for File Format for
LEVELS(R) Version 5.6 Revised
Schedule A: Mortgage
Loan Schedule
<PAGE>
THIS
MORTGAGE LOAN PURCHASE AGREEMENT, dated as of February 1, 2005
(the
"Agreement"), is made and entered into between Fremont Investment
& Loan (the
"Originator" or "Fremont") and Fremont Mortgage Securities
Corporation (the
"Purchaser").
WITNESSETH
WHEREAS,
the Originator is the owner of the notes or other evidence of
indebtedness (collectively, the "Mortgage Notes") so indicated on
Schedule A
attached hereto and the other documents or instruments constituting
the Mortgage
File (collectively, the "Mortgage Loans"); and
WHEREAS,
the Originator, as of the date hereof, owns the mortgages
(collectively, the "Mortgages") on the properties (collectively,
the "Mortgaged
Properties") securing the Mortgage Loans, including rights to (a)
any property
acquired by foreclosure or deed in lieu of foreclosure or otherwise
and (b) the
proceeds of any insurance policies covering such Mortgage Loans or
the related
Mortgaged Properties or the obligors on such Mortgage Loans;
and
WHEREAS,
the parties hereto desire that the Originator sell the Mortgage
Loans to the Purchaser pursuant to the terms of this Agreement;
and
WHEREAS,
pursuant to the terms of that certain Pooling and Servicing
Agreement dated as of February 1, 2005 (the "Pooling and Servicing
Agreement")
among the Purchaser, as depositor, Fremont, as originator and
servicer, HSBC
Bank USA, National Association, as trustee (the "Trustee"), Wells
Fargo Bank,
N.A., as master servicer (in such capacity, the "Master Servicer")
and trust
administrator (in such capacity, the "Trust Administrator"), the
Purchaser will
convey the Mortgage Loans to Fremont Home Loan Trust 2005-A (the
"Trust").
NOW,
THEREFORE, in consideration of the mutual covenants herein
contained,
the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND SCHEDULES
Section
1.01. Definitions.
Any
capitalized term used but not defined herein and below shall have
the
meaning assigned thereto in the Pooling and Servicing
Agreement.
ARTICLE II
SALE OF MORTGAGE LOANS; PAYMENT OF PURCHASE PRICE
Section
2.01. Sale of Mortgage Loans.
The
Originator, concurrently with the execution and delivery of
this
Agreement, does hereby sell, transfer, assign, set over, and
otherwise convey to
the Purchaser, without recourse,
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(i) all of its right, title and interest in and to each of the
Mortgage Loans,
including the related principal balance of such Mortgage Loan as of
the Cut-off
Date (the "Cut-off Date Principal Balance") and interest and
principal received
on or with respect thereto after the Cut-off Date, other than such
amounts which
were due on the Mortgage Loans on or before the Cut-off Date; (ii)
property
which secured such Mortgage Loan and which has been acquired by
foreclosure,
deed in lieu of foreclosure or otherwise; (iii) its interest in any
insurance
policies in respect of the Mortgage Loans; and (iv) all proceeds of
the
conversion, voluntary or involuntary, of any of the foregoing into
cash or other
liquid property.
Section
2.02. Obligations of the Originator Upon Sale.
In
connection with the transfer pursuant to Section 2.01 hereof,
the
Originator further agrees, at its own expense, on or prior to the
Closing Date
or as otherwise indicated in this Section 2.02, (a) to indicate in
its books,
records and computer systems that the Mortgage Loans have been sold
to the
Purchaser pursuant to this Agreement, (b) to deliver to the
Purchaser and the
Trustee a computer file containing a true and complete list of all
such Mortgage
Loans specifying for each Mortgage Loan, as of the Cut-off Date,
(i) its account
number and (ii) the Cut-off Date Principal Balance and such file,
which forms a
part of Schedule I to the Pooling and Servicing Agreement, shall
also be marked
as Schedule A to this Agreement and is hereby incorporated into and
made a part
of this Agreement and (c) for each Mortgage Loan that is not a MERS
Mortgage
Loan, to execute an Assignment of Mortgage in blank for each
Mortgage Loan.
In
connection with such conveyance by the Originator, the Originator
shall
on behalf of the Purchaser deliver to, and deposit with the Trust
Administrator,
as custodian on behalf of the Trustee, as assignee of the
Purchaser, the
Mortgage Files relating to the Mortgage Loans on or before the
Closing Date in
the manner set forth in Section 2.01 of the Pooling and Servicing
Agreement.
The
Purchaser hereby acknowledges its acceptance of all right, title
and
interest to the Mortgage Loans and other property, now existing or
hereafter
created, conveyed to it pursuant to Section 2.01 hereof.
The
parties hereto intend that the transaction set forth herein be
a
non-recourse sale by the Originator to the Purchaser of all of the
Originator's
right, title and interest in and to the Mortgage Loans and other
property
described above. Nonetheless, in the event the transaction set
forth herein is
deemed not to be a sale, the Originator hereby grants to the
Purchaser a
security interest in all of the Originator's right, title and
interest in, to
and under the Mortgage Loans and other property described above,
whether now
existing or hereafter created, to secure all of the Originator's
obligations
hereunder, and this Agreement shall constitute a security agreement
under
applicable law. The Originator and the Purchaser shall, to the
extent consistent
with this Agreement, take such actions as may be necessary to
ensure that, if
this Agreement were deemed to create a security interest in the
Mortgage Loans,
such security interest would be deemed to be a perfected security
interest of
first priority under applicable law and will be maintained as such
throughout
the term of the Pooling and Servicing Agreement.
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Section
2.03. Payment of Purchase Price for the Mortgage Loans.
In
consideration of the sale of the Mortgage Loans from the Originator
to
the Purchaser on the Closing Date, the Purchaser agrees to pay to
the Originator
on the Closing Date by transfer of immediately available funds, an
amount equal
to the gross proceeds received from the sale of the Offered
Certificates and the
Class M10 Certificates and to transfer to the Originator or its
designee on the
Closing Date the Class C, P and R Certificates (collectively, the
"Purchase
Price"). The Originator shall pay, and be billed directly for, all
reasonable
expenses incurred by the Purchaser in connection with the issuance
of the
Certificates, including, without limitation, printing fees incurred
in
connection with the offering documents relating to the
Certificates, fees and
expenses of Purchaser's counsel, fees of the rating agencies
requested to rate
the Certificates, accountant's fees and expenses and the fees and
expenses of
the Trustee and the Trust Administrator and other out-of-pocket
costs, if any.
ARTICLE III
REPRESENTATIONS AND WARRANTIES; REMEDIES FOR BREACH
Section
3.01. Originator's Representations and Warranties Relating to
the
Mortgage Loans.
The
Originator represents and warrants to the Purchaser the
representations and warranties set forth in Exhibit A attached
hereto with
respect to each Mortgage Loan as of the Closing Date (or as of such
date
specifically provided therein).
Section
3.02. Additional Originator's Representations and Warranties.
The
Originator represents, warrants and covenants to the Purchaser as
of
the Closing Date (or as of such other date specifically provided
herein) that:
(a) The
Originator is a corporation duly organized, validly existing
and
in good standing under the laws of its jurisdiction of
incorporation or
formation and has all licenses necessary to carry on its business
as now being
conducted and is licensed, qualified and in good standing in each
state wherein
it owns or leases any material properties or where a Mortgaged
Property is
located, if the laws of such state require licensing or
qualification in order
to conduct business of the type conducted by the Originator, and in
any event
the Originator is in compliance with the laws of any such state to
the extent
necessary to ensure the enforceability of the related Mortgage Loan
in
accordance with the terms of this Agreement; the Originator has the
full
corporate power, authority and legal right to hold, transfer and
convey the
Mortgage Loans and to execute and deliver this Agreement and to
perform its
obligations hereunder; the execution, delivery and performance of
this Agreement
(including all instruments of transfer to be delivered pursuant to
this
Agreement) by the Originator and the consummation of the
transactions
contemplated hereby have been duly and validly authorized; this
Agreement and
all agreements contemplated hereby have been duly executed and
delivered and
constitute the valid, legal, binding and enforceable obligations of
the
Originator, regardless of whether such enforcement is sought in a
proceeding in
equity or at law; and all requisite corporate action has
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been taken by the Originator to make this Agreement and all
agreements
contemplated hereby valid and binding upon the Originator in
accordance with
their terms;
(b)
Neither the execution and delivery of this Agreement, the
acquisition
or origination of the Mortgage Loans by the Originator, the sale of
the Mortgage
Loans to the Purchaser, the consummation of the transactions
contemplated hereby
and by the Pooling and Servicing Agreement, nor the fulfillment of
or compliance
with the terms and conditions of this Agreement, will conflict with
or result in
a breach of any of the terms, conditions or provisions of the
Originator's
charter, by-laws or other organizational documents or any legal
restriction or
any agreement or instrument to which the Originator is now a party
or by which
it is bound, or constitute a default or result in an acceleration
under any of
the foregoing, or result in the violation of any law, rule,
regulation, order,
judgment or decree to which the Originator or its property is
subject, or result
in the creation or imposition of any lien, charge or encumbrance
that would have
material adverse effect upon any of its properties pursuant to the
terms of any
mortgage, contract, deed of trust or other instrument, or impair
the ability of
the Purchaser to realize on the Mortgage Loans, impair the value of
the Mortgage
Loans, or impair the ability of the Purchaser to realize the full
amount of any
insurance benefits accruing pursuant to this Agreement;
(c) The
Originator does not believe, nor does it have any reason or
cause
to believe, that it cannot perform each and every covenant
contained in this
Agreement. The Originator is solvent and the sale of the Mortgage
Loans will not
cause the Originator to become insolvent. The sale of the Mortgage
Loans is not
undertaken with the intent to hinder, delay or defraud any of
Originator's
creditors;
(d)
Immediately prior to the delivery of each Mortgage Loan, the
Originator was the owner of the related Mortgage and the
indebtedness evidenced
by the related Mortgage Note. In the event that the Originator
retains record
title, it shall retain such record title to each Mortgage, each
related Mortgage
Note and the related Mortgage Files with respect thereto in trust
for the
Purchaser or its assignee as the owner thereof and only for the
purpose of
servicing and supervising the servicing of each such Mortgage
Loan;
(e) There
is no action, suit, proceeding or investigation pending or, to
the best of the Originator's knowledge, threatened against the
Originator,
before any court, administrative agency or other tribunal (i)
asserting the
invalidity of this Agreement, (ii) seeking to prevent the
consummation of any of
the transactions contemplated by this Agreement, (iii) which,
either in any one
instance or in the aggregate, is likely to result in any material
adverse change
in the business, operations, financial condition, properties or
assets of the
Originator, or in any material impairment of the right or ability
of the
Originator to carry on its business substantially as now conducted,
or in any
material liability on the part of the Originator, or which would
draw into
question the validity of this Agreement or the Mortgage Loans or of
any action
taken or to be taken in connection with the obligations of the
Originator
contemplated herein, or which would be likely to impair materially
the ability
of the Originator to perform under the terms of this Agreement,
(iv) relating to
fraud, or (v) relating to predatory lending, or the Originator's
origination,
servicing or closing practices which is likely to result in any
material adverse
change in the business, operations, financial condition, properties
or assets of
the Originator.
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(f) No
consent, approval, authorization or order of, or registration
or
filing with, or notice to any court or governmental agency is
required for the
execution, delivery and performance by the Originator of or
compliance by the
Originator with this Agreement or the Mortgage Loans, the delivery
of a portion
of the Mortgage Files to the Trustee or the sale of the Mortgage
Loans or the
consummation of the transactions contemplated by this Agreement, or
if required,
such approval has been obtained prior to the Closing Date;
(g) The
consummation of the transactions contemplated by this Agreement
are in the ordinary course of business of the Originator, and the
transfer,
assignment and conveyance of the Mortgage Notes and the Mortgages
by the
Originator pursuant to this Agreement are not subject to the bulk
transfer or
any similar statutory provisions in effect in any applicable
jurisdiction;
(h)
Neither this Agreement nor any information, statement, tape,
diskette,
report, form, or other document furnished or to be furnished by the
Originator
pursuant to this Agreement or any Transaction Agreement or in
connection with
the transactions contemplated hereby contains or will contain any
material
untrue statement of fact;
(i) The
Originator, as Servicer, has the facilities, procedures, and
experienced personnel necessary for the sound servicing of mortgage
loans of the
same type as the Mortgage Loans. The Originator is duly qualified,
licensed,
registered and otherwise authorized under all applicable federal,
state and
local laws, and regulations, and is in good standing to enforce,
originate, sell
mortgage loans, and service mortgage loans in each jurisdiction
wherein the
Mortgaged Properties are located;
(j) The
Originator is a member of MERS in good standing, and will
comply
in all material respects with the rules and procedures of MERS in
connection
with the servicing of the MERS Mortgage Loans for as long as such
Mortgage Loans
are registered with MERS.
(k) The
Mortgage Loans were not intentionally selected from among the
outstanding one- to four-family mortgage loans in the Originator's
portfolio at
the Closing Date as to which the representations and warranties set
forth in
Exhibit A could not be made;
(l) The
Originator has delivered to the Purchaser financial statements
as
to its last three complete fiscal years and any later quarter ended
more than 60
days prior to the execution of this Agreement. All such financial
statements
fairly present the pertinent results of operations and changes in
financial
position for each of such periods and the financial position at the
end of each
such period of the Originator and its subsidiaries and have been
prepared in
accordance with generally accepted accounting principles
consistently applied
throughout the periods involved, except as set forth in the notes
thereto or as
required by the Originator's regulator. There has been no change in
the
business, operations, financial condition, properties or assets of
the
Originator since the date of the Originator's financial statements
that would
have a material adverse effect on its ability to perform its
obligations under
this Agreement;
(m) The
Originator has been advised by its independent certified public
accountants that under generally accepted accounting principles the
transfer of
the Mortgage Loans may be treated as a sale on the books and
records of the
Originator and the Originator has determined
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that the disposition of the Mortgage Loans pursuant to this
Agreement will be
afforded sale treatment for tax and accounting purposes;
(n) The
consideration received by the Originator upon the sale of the
Mortgage Loans under this Agreement constitutes fair consideration
and
reasonably equivalent value for the Mortgage Loans;
(o) The
Originator's decision to purchase or originate any mortgage
loan
or to deny any mortgage loan application is an independent decision
based upon
Originator's underwriting guidelines, and is in no way made as a
result of
Purchaser's decision to purchase, or not to purchase, or the price
Purchaser may
offer to pay for, any such mortgage loan, if originated;
(p) The
Originator makes the following additional representations and
warranties:
(i) This Agreement conforms to all statutory and regulatory
requirements applicable to the Originator. This Agreement is (a)
executed
contemporaneously with the agreement reached by the Originator and
the
Purchaser,
(b) approved by a specific corporate or banking association
resolution
by the board of directors of the Originator, which approval
shall be
reflected in the minutes of said board, and (c) continuously,
from the
time of its execution, an official record of the Originator;
(ii)
This Agreement has been duly and validly authorized by a
specific
corporate or banking association resolution by the board of
directors
of the Originator. A copy of such resolution, certified by the
corporate
secretary of the Originator or attested to by a vice president
or higher
officer of the Originator has been provided to the Purchaser;
and
(iii) The Originator will maintain a copy of this Agreement in
its
official
books and records.
Section
3.03. Remedies for Breach of Representations and Warranties.
It is
understood and agreed that the representations and warranties
set
forth in Sections 3.01 and 3.02 shall survive the sale of the
Mortgage Loans to
the Purchaser and shall inure to the benefit of the Purchaser and
the Trustee,
notwithstanding any restrictive or qualified endorsement on any
Mortgage Note or
Assignment or the examination or lack of examination of any
Mortgage File. With
respect to the representations and warranties contained herein that
are made to
the knowledge or the best knowledge of the Originator or as to
which the
Originator has no knowledge, if it is discovered that the substance
of any such
representation and warranty is inaccurate and the inaccuracy
materially and
adversely affects the value of the Mortgage Loan or Loans, or the
interest
therein of the Purchaser or the Purchaser's assignee, designee or
transferee,
then notwithstanding such lack of knowledge with respect to the
substance of
such representation and warranty being inaccurate at the time the
representation
and warranty was made, such inaccuracy shall be deemed a breach of
the
applicable representation and warranty. Upon discovery by the
Originator, the
Servicer, the Master Servicer, the Trust Administrator, the Trustee
or the
Purchaser of a breach of any of the foregoing representations and
warranties
that
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<PAGE>
materially and adversely affects the value of any Mortgage Loan or
the interest
of the Purchaser or the Trustee (or which materially and adversely
affects the
value of a Mortgage Loan or the interests of the Purchaser or the
Trustee in
such Mortgage Loan in the case of a representation and warranty
relating to a
particular Mortgage Loan) (it being understood that a breach of
the
representations and warranties set forth in clauses I(ss), I(tt),
I(uu), I(ww),
I(bbb), I(jjj), I(lll) and II of Exhibit A attached hereto will be
deemed to
materially and adversely affect the value of any Mortgage Loan or
the interest
of the Purchaser or the Trustee), the party discovering such breach
shall give
prompt written notice to the other parties.
Within 60
days of the earlier of either discovery by or notice to the
Originator of any breach of a representation or warranty that
materially and
adversely affects the value of a Mortgage Loan or the interest of
the Purchaser
or the Trustee in such Mortgage Loan, the Originator shall use its
best efforts
promptly to cure such breach in all material respects. If such
breach is not so
cured, the Originator shall, (i) if such 60-day period expires
prior to the
second anniversary of the Closing Date, remove such Mortgage Loan
(a "Deleted
Mortgage Loan") from the Trust Fund and substitute in its place a
Qualified
Substitute Mortgage Loan or Loans, in the manner and subject to the
conditions
set forth in this Section and the Pooling and Servicing Agreement;
or (ii)
repurchase the affected Mortgage Loan or Mortgage Loans from the
Trustee at the
Purchase Price in the manner set forth in this Section and in the
Pooling and
Servicing Agreement; provided, however, that any such substitution
pursuant to
(i) above shall not be effected prior to the delivery to the
Trustee and the
Trust Administrator of an Opinion of Counsel required by Section
2.04 of the
Pooling and Servicing Agreement, if any. The Originator shall
promptly reimburse
the Trustee, the Master Servicer and the Trust Administrator for
any actual
out-of-pocket expenses reasonably incurred by the Trustee, the
Master Servicer
and the Trust Administrator in respect of enforcing the remedies
for such
breach.
At the
time of substitution or repurchase of any deficient Mortgage
Loan,
the Purchaser and Originator shall arrange for the reassignment of
the deficient
or repurchased Mortgage Loan to the Originator, including delivery
to the
Trustee of a Request for Release substantially relating to the
Deleted Mortgage
Loan, and the delivery to the Originator of any documents held by
the Trustee
relating to the deficient or repurchased Mortgage Loan. In the
event the
Purchase Price is deposited in the Collection Account, the
Originator shall,
simultaneously with such deposit, give written notice to the
Purchaser that such
deposit has taken place. Upon such repurchase, the Mortgage Loan
Schedule shall
be amended to reflect the withdrawal of the repurchased Mortgage
Loan from this
Agreement and, if applicable, the substitution of the applicable
Qualified
Substitute Mortgage Loan or Loans.
If
pursuant to this Section 3.03 the Originator repurchases or
substitutes
a Mortgage Loan that is a MERS Mortgage Loan, the Originator shall,
at the
Originator's expense, either (i) cause MERS to execute and deliver
an Assignment
of Mortgage in recordable form to transfer the Mortgage from MERS
to the
Originator and shall cause such Mortgage to be removed from
registration on the
MERS(R) System in accordance with MERS' rules and regulations or
(ii) cause MERS
to designate on the MERS(R) System the Originator as the beneficial
holder of
such Mortgage Loan.
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As to any
Deleted Mortgage Loan for which the Originator substitutes a
Qualified Substitute Mortgage Loan or Loans, the Originator shall
effect such
substitution by delivering to the Purchaser or its designee for
such Qualified
Substitute Mortgage Loan or Loans the Mortgage File and such other
documents and
agreements as are required by the Pooling and Servicing Agreement,
with the
Mortgage Note endorsed as required therein. No substitution is
permitted to be
made in any calendar month after the Determination Date for such
month.
The
amount, if any, by which (x) the aggregate principal balance of
all
such Qualified Substitute Mortgage Loans as of the date of
substitution is less
than (y) the sum of the aggregate Stated Principal Balance of all
such Deleted
Mortgage Loans (after application of the scheduled principal
portion of the
monthly payments due in the month of substitution) (the
"Substitution Adjustment
Amount") plus an amount equal to the aggregate of any unreimbursed
Advances with
respect to such Deleted Mortgage Loans shall be deposited in the
Collection
Account by the Originator on or before the Business Day immediately
preceding
the Distribution Date in the month succeeding the calendar month
during which
the Originator became obligated hereunder to repurchase or replace
the related
Mortgage Loan. Upon any such substitution and the deposit to the
Collection
Account of any required Substitution Adjustment Amount, the Trustee
or the
custodian, as applicable, shall release the Mortgage File held for
the benefit
of the Certificateholders relating to such Deleted Mortgage Loan
and shall
execute and deliver at the Originator's direction such instruments
of transfer
or assignment prepared by the Originator, in each case without
recourse, as
shall be necessary to transfer title to the Originator, or its
designee, of the
Trustee's interest in any Deleted Mortgage Loan substituted
pursuant to this
Section 3.03. Upon such substitution, the Qualified Substitute
Mortgage Loans
shall be subject to the terms of this Agreement in all respects,
and the
Originator shall be deemed to have made with respect to such
Qualified
Substitute Mortgage Loan or Loans, as of the date of substitution,
the
covenants, representations and warranties set forth in Subsections
3.01 and 3.02
hereof.
One or
more mortgage loans may be substituted for one or more Deleted
Mortgage Loans. The determination of whether a mortgage loan is a
Qualified
Substitute Mortgage Loan may be satisfied on an individual basis.
Alternatively,
if more than one mortgage loan is to be substituted for one or more
Deleted
Mortgage Loans, the characteristics of such mortgage loans and
Deleted Mortgage
Loans shall be aggregated or calculated on a weighted average
basis, as
applicable, in determining whether such mortgage loans are
Qualified Substitute
Mortgage Loans.
In the
event that the Originator shall have repurchased a Mortgage
Loan,
the Purchase Price therefor shall be deposited in the Collection
Account on or
before the Business Day immediately preceding the Distribution Date
in the month
following the month during which the Originator became obligated
hereunder to
repurchase or replace such Mortgage Loan and upon such deposit of
the Purchase
Price and receipt of a Request for Release in the form of Exhibit J
to the
Pooling and Servicing Agreement, the Trustee or the custodian, as
applicable,
shall release the related Mortgage File held for the benefit of
the
Certificateholders to the Originator or its designee, and the
Trustee shall
execute and deliver at such Person's direction such instruments of
transfer or
assignment prepared by such Person, in each case without recourse,
as shall be
necessary to transfer title to the Originator or its designee of
the Trustee's
interest in such Mortgage Loan.
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It is
understood and agreed that the representations and warranties
set
forth in Section 3.01 shall survive delivery of the respective
Mortgage Files to
the Trustee on behalf of the Purchaser.
It is
understood and agreed that the obligations of the Originator
set
forth in this Section 3.03 to cure, repurchase or substitute for a
defective
Mortgage Loan and to indemnify the Purchaser as provided in Section
5.01
constitute the sole remedies of the Purchaser respecting a missing
or defective
document or a breach of the representations and warranties
contained in Section
3.01.
ARTICLE IV
ORIGINATOR'S COVENANTS
Section
4.01. Covenants of the Originator.
The
Originator hereby covenants that except for the transfer hereunder,
it
will not sell, pledge, assign or transfer to any other Person, or
grant, create,
incur, assume or suffer to exist any Lien on any Mortgage Loan, or
any interest
therein; it will notify the Trustee, as assignee of the Purchaser,
of the
existence of any Lien on any Mortgage Loan immediately upon
discovery thereof;
and it will defend the right, title and interest of the Trustee, as
assignee of
the Purchaser, in, to and under the Mortgage Loans, against all
claims of third
parties claiming through or under the Originator; provided,
however, that
nothing in this Section 4.01 shall prevent or be deemed to prohibit
the
Originator from suffering to exist upon any of the Mortgage Loans
any Liens for
municipal or other local taxes and other governmental charges if
such taxes or
governmental charges shall not at the time be due and payable or if
the
Originator shall currently be contesting the validity thereof in
good faith by
appropriate proceedings and shall have set aside on its books
adequate reserves
with respect thereto.
ARTICLE V
INDEMNIFICATION WITH RESPECT TO THE MORTGAGE LOANS
Section
5.01. Indemnification.
(a) The
Originator agrees to indemnify and to hold the Purchaser, each
of
its officers and directors and each person or entity who controls
the Purchaser
or such person, the Trustee and each Certificateholder harmless
against any and
all claims, losses, penalties, fines, forfeitures, legal fees and
related costs,
judgments, and any other costs, fees and expenses that the
Purchaser or any such
person or entity and any Certificateholder may sustain in any way
(i) related to
the failure of the Originator to perform its duties in compliance
with the terms
of this Agreement, (ii) arising from a breach by the Originator of
its
representations and warranties in Section 3.01 or (iii) related to
the
origination or prior servicing of the Mortgage Loans by reason of
any acts,
omissions, or alleged acts or omissions of the Originator or any
servicer. The
Originator shall promptly notify the Purchaser and the Trustee if a
claim is
made by a third party with respect to this Agreement. The
Originator shall
assume the defense of any such claim and
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pay all expenses in connection therewith, including reasonable
counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which
may be entered
against the Purchaser or any such person or entity and/or the
Trustee or any
Certificateholder in respect of such claim.
ARTICLE VI
TERMINATION
Section
6.01. Termination.
The
respective obligations and responsibilities of the Originator and
the
Purchaser created hereby shall terminate, except for the
Originator's indemnity
obligations as provided herein, upon the termination of the Trust
as provided in
Article IX of the Pooling and Servicing Agreement.
ARTICLE VII
MISCELLANEOUS PROVISIONS
Section
7.01. Amendment.
This
Agreement may be amended from time to time by the Originator and
the
Purchaser by written agreement signed by the parties hereto.
Section
7.02. Governing Law.
This
Agreement shall be governed by and construed in accordance with
the
laws of the State of New York, without regard to its material
conflict of laws
rules (except for Section 5-1401 of the General Obligations Law
which shall
apply hereto), and the obligations, rights and remedies of the
parties hereunder
shall be determined in accordance with such laws.
Section
7.03. Notices.
All
demands, notices and communications hereunder shall be in writing
and
shall be deemed to have been duly given if personally delivered at
or mailed by
registered mail, postage prepaid, addressed as follows:
if to the Originator:
Fremont Investment & Loan
2727 East Imperial Highway
Brea, California 92821
Attention: Senior Vice
President - Finance
with a copy to:
Fremont General Corporation
2425 Olympic Boulevard
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Santa Monica, California 90404
Attention: General Counsel
or such other address as may hereafter be furnished to the
Purchaser in writing
by the Originator.
if to the Purchaser:
Fremont Mortgage Securities Corporation
2727 East Imperial Highway
Brea, California 92821
Attention: Senior Vice
President - Treasurer
with a copy to:
Fremont General Corporation
2425 Olympic Boulevard
Santa Monica, California 90404
Attention: General Counsel
or such other address as may hereafter be furnished to Fremont in
writing by the
Purchaser.
Section
7.04. Severability of Provisions.
If any one
or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever,
then such
covenants, agreements, provisions or terms shall be deemed
severable from the
remaining covenants, agreements, provisions or terms of this
Agreement and shall
in no way affect the validity or enforceability of the other
provisions of this
Agreement.
Section
7.05. Counterparts.
This
Agreement may be executed in one or more counterparts and by
the
different parties hereto on separate counterparts, which may be
transmitted by
telecopier each of which, when so executed, shall be deemed to be
an original
and such counterparts, together, shall constitute one and the same
agreement.
Section 7.06.
Further Agreements.
The
parties hereto each agree to execute and deliver to the other
such
additional documents, instruments or agreements as may be necessary
or
reasonable and appropriate to effectuate the purposes of this
Agreement or in
connection with the issuance of any Series of Certificates
representing
interests in the Mortgage Loans.
Without
limiting the generality of the foregoing, as a further
inducement
for the Purchaser to purchase the Mortgage Loans from the
Originator, the
Originator will cooperate with the Purchaser in connection with the
sale of any
of the securities representing interests in the Mortgage Loans. In
that
connection, the Originator will provide to the Purchaser any and
all
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information and appropriate verification of information, whether
through letters
of its auditors and counsel or otherwise, as the Purchaser shall
reasonably
request and will provide to the Purchaser such additional
representations and
warranties, covenants, opinions of counsel, letters from auditors,
and
certificates of public officials or officers of the Originator as
are reasonably
required in connection with such transactions and the offering of
investment
grade securities rated by the Rating Agencies.
Without
limiting the foregoing, the Originator agrees to deliver to the
Purchaser the following documents and opinions in connection with
the issuance
of the Fremont Home Loan Trust 2005-A, Mortgage-Backed
Certificates, Series
2005-A (the "Certificates") on or before the Closing Date:
1. one or more opinions of counsel addressed to the Purchaser,
and
to any
Person designated by the Purchaser, in a form reasonably
acceptable
to the
Purchaser, from counsel to the Originator as to due
incorporation
and good
standing, due authorization, execution and delivery by Fremont
of
related
agreements for which Fremont is a signatory; the enforceability
of
such
documents by Fremont; and other corporate matters;
2. an opinion of counsel to the Originator, addressed to the
Purchaser,
and to any Person designated by the Purchaser, in a form
acceptable
to the Purchaser, addressing the characterization of the
transfer
of the Mortgage Loans from the Originator to the Purchaser;
3. an indemnification agreement executed by and among Fremont,
Credit
Suisse First Boston LLC, Goldman, Sachs & Co., Greenwich
Capital
Markets,
Inc. and Lehman Brothers Inc. for losses as a result of
material
misstatements and omissions in the information provided by or on
behalf of
the
parties thereto and their affiliates for inclusion in the
prospectus
supplement
or any other offering document relating to the Certificates;
and
4. a statement rendered by counsel for Fremont to the Purchaser
and
the
Underwriters as to the lack of material misstatements and omissions
in
the
information provided by Fremont for inclusion in the prospectus
supplement
or any other offering document relating to the Certificates.
In
addition, the Originator shall sign the certification for the
benefit
of Wells Fargo Bank, N.A., relating to the Form 10-K relating to
the Trust to be
filed on or before March 31, 2006. The Originator shall execute the
Pooling and
Servicing Agreement in its capacity as originator and servicer and
will make the
representations and warranties set forth in Sections 3.01 and 3.02
herein to the
Trustee in the Pooling and Servicing Agreement.
Section
7.07. Intention of the Parties.
It is the
intention of the parties that the Purchaser is purchasing, and
the Originator is selling, the Mortgage Loans rather than pledging
such Mortgage
Loans to secure a loan by the
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Purchaser to the Originator. Accordingly, the parties hereto each
intend to
treat the transaction as a sale by the Originator, and a purchase
by the
Purchaser, of the Mortgage Loans. The Purchaser will have the right
to review
the Mortgage Loans and the related Mortgage Files to determine
the
characteristics of the Mortgage Loans which will affect the federal
