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EXHIBIT 3
FREMONT MORTGAGE SECURITIES CORPORATION,
as Purchaser
and
FREMONT INVESTMENT & LOAN,
as Originator
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of May 1, 2005
Fixed-Rate and Adjustable-Rate Mortgage Loans
Fremont Home Loan Trust 2005-B,
Mortgage-Backed Certificates, Series 2005-B
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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..........................................................13
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 5.6b Revised
Schedule A: Mortgage Loan Schedule
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THIS MORTGAGE LOAN PURCHASE AGREEMENT, dated as of May 1, 2005
(the
"Agreement"), is made and entered into
between Fremont Investment & Loan (the
"Originator" or "Fremont") and Fremont
Mortgage Securities Corporation (the
"Purchaser").
W I T N E S S E T H
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 May 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-B (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 M11 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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Mortgage Loan Purchase Agreement
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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-B,
Mortgage-Backed Certificates, Series
2005-B (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,
Goldman, Sachs & Co., Barclays Capital Inc., Credit Suisse
First Boston
LLC, Deutsche Bank Securities Inc. and Greenwich Capital Markets,
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
consequences of owning the Mortgage Loans
and the Originator will cooperate with
all reasonable requests made by the
Purchaser in the course of such review.
Section 7.08. Successors and Assigns: Assignment of Purchase
Agreement.
This Agreement shall bind and inure to the benefit of and be
enforceable by the Originator, the
Purchaser and the Trustee. The obligations of
the Originator under this Agreement cannot
be assigned or delegated to a third
party without the consent of the Purchaser
which consent shall be at the
Purchaser's sole discretion, except that
the Purchaser acknowledges and agrees
that the Originator may assign its
obligations hereunder to any Person into
which the Originator is merged or any
corporation resulting from any merger,
conversion or consolidation to which the
Originator is a party or any Person
succeeding to the business of the
Originator. The parties hereto acknowledge
that the Purchaser is acquiring the
Mortgage Loans for the purpose of
contributing them to a trust that will
issue a Series of Certificates
representing undivided interests in such
Mortgage Loans. As an inducement to the
Purchaser to purchase the Mortgage Loans,
the Originator acknowledges and
consents to the assignment by the Purchaser
directly or indirectly through an
affiliate to the Trustee of all of the
Purchaser's rights against the
