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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 August 1, 2004
Fixed-Rate and Adjustable-Rate Mortgage Loans
Fremont Home Loan Trust 2004-C,
Mortgage-Backed Certificates, Series 2004-C
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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 7.04. 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 August 1, 2004
(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 August 1, 2004 (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 2004-C (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;
(iv) all of its right, title and
interest in and to the Certificate Cap
Agreements; and (v) 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 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 prospectus
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 it 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), 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,
the Class IA insurer 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.
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
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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 and the
obligations, rights and remedies of the
parties hereunder shall be determined in
accordance with such laws (without
regard to its material conflict of laws
rules).
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
175 North Riverview Drive
Anaheim, California 92808
Attention: Senior Vice
President - Finance
with a copy to:
Fremont General Corporation
2020 Santa Monica Boulevard
Santa Monica, California 90404
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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
175 North Riverview Drive
Anaheim, California 92808
Attention: Senior Vice
President - Treasurer
with a copy to:
Fremont General Corporation
2020 Santa Monica 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 information
and appropriate verification of
information, whether through letters of its
auditors
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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 2004-C,
Mortgage-Backed Certificates, Series
2004-C (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,
Bear,
Stearns
& Co. Inc., 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, 2005. 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 Purchaser to
the Originator. Accordingly, the
parties hereto each intend to treat the
transaction
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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
