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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
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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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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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<PAGE>
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 income tax
consequ
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