LOAN PURCHASE AGREEMENT
THIS LOAN PURCHASE AGREEMENT, dated
March 9, 2007, is entered into by and among DLJ Mortgage Capital,
Inc., a Delaware corporation (“Sponsor”), Credit Suisse
First Boston Mortgage Acceptance Corp., a Delaware corporation
(“Purchaser”), U.S. Bank National Association, as
indenture trustee (the “Indenture Trustee”) and Home
Equity Mortgage Trust 2007-1 (the “Issuer”):
WITNESSETH
:
WHEREAS, Sponsor, in the ordinary course of its
business acquires and originates mortgage loans and acquired or
originated all of the mortgage loans listed on the Loan Schedule
attached as Exhibit A hereto (the “Initial
Loans”);
WHEREAS, as of each Subsequent Transfer Date (as
defined below), Sponsor will own other mortgage loans (the
“Subsequent Loans” and together with the Initial Loans,
the “Loans”) so indicated in the related Subsequent
Transfer Agreement (as defined below);
WHEREAS, the parties hereto desire that: (i) the
Sponsor sell the Initial Loans to the Purchaser on the Closing Date
and thereafter all Additional Balances relating to the Initial
Loans created on or after the Cut-off Date pursuant to the terms of
this Loan Purchase Agreement together with the Basic Documents,
(ii) the Sponsor sell the Subsequent Loans, if any, to the Issuer,
as assignee of the Purchaser under this Loan Purchase Agreement, on
each Subsequent Transfer Date and thereafter all Additional
Balances relating to the Subsequent Loans created on or after the
related Subsequent Transfer Date pursuant to the terms of a
Subsequent Transfer Agreement together with the Basic Documents and
(iii) the Sponsor make certain representations and warranties on
the Closing Date;
WHEREAS, pursuant to the Trust Agreement, the
Purchaser will sell the Initial Loans and transfer all of its
rights under this Loan Purchase Agreement to the Issuer on the
Closing Date;
NOW, THEREFORE, for and in consideration of the
sale of the Loans from Sponsor to the Purchaser on the date hereof,
the Purchaser shall pay to Sponsor on the date hereof by wire
transfer of immediately available funds the net proceeds to the
Purchaser of the sale of the Notes, together with the Certificates,
the parties hereto hereby agree as follows:
Section 1.
Transfer of Initial Loans and
Subsequent Loans .
Sponsor hereby sells, transfers, assigns and otherwise conveys to
Purchaser (A) the Initial Loans and all Additional Balances
thereafter arising, including the Mortgage Notes, the Mortgages,
any related insurance policies and all other documents in the
related Loan Files and including any Eligible Substitute Loans; (B)
all pool insurance policies, hazard insurance policies, and
bankruptcy bonds relating to the foregoing, and (C) all amounts
payable after the Cut-off Date to the holders of the Initial Loans
in accordance with the terms thereof. In addition, the Sponsor has
delivered to the Purchaser or the Custodian, as directed by the
Purchaser, the Loan Schedule and the documents listed on Exhibit C;
provided, however, that the Purchaser does not assume the
obligation under each Loan Agreement relating to a HELOC to fund
Draws to the Mortgagor thereunder, and the Purchaser shall not be
obligated or permitted to fund any such Draws, it being agreed that
the Sponsor will retain the obligation to fund future Draws. Such
conveyance shall be deemed to be made: (1) with respect to the
Cut-off Date Principal Balances, as of the Closing Date; and (2)
with respect to the amount of each Additional Balance created on or
after the Cut-off Date, as of the later of the Closing Date and the
date that the corresponding Draw was made pursuant to the related
Loan Agreement, subject to the receipt by the Servicer of
consideration therefor as provided in Section 3.16 of the Servicing
Agreement and 3.05 of the Indenture.
Sponsor covenants and agrees to use its best
efforts to acquire and sell to the Issuer as assignee of the
Purchaser, and the Issuer will agree in the Indenture to pledge to
the Indenture Trustee, subject to satisfaction of the conditions
set forth therein, the Subsequent Loans. On each Subsequent
Transfer Date, concurrently with the execution and delivery of the
related Subsequent Transfer Agreement (the form of which is
attached hereto as Exhibit D) and subject to the terms thereof, the
Sponsor will thereby sell, transfer, assign and otherwise convey to
Issuer as assignee of the Purchaser (A) the Subsequent Loans and
all Additional Balances thereafter arising, including the Mortgage
Notes, the Mortgages, any related insurance policies and all other
documents in the related Loan Files and including any Eligible
Substitute Loans; (B) all pool insurance policies, hazard insurance
policies, and bankruptcy bonds relating to the foregoing, and (C)
all amounts payable after the related Subsequent Transfer Date to
the holders of the Subsequent Loans in accordance with the terms
thereof. In addition, Sponsor covenants to deliver to the Issuer as
assignee of the Purchaser or the Custodian, as directed by the
Purchaser, the documents listed on Exhibit C with respect to the
Subsequent Loans. Such conveyance shall be deemed to be made: (1)
with respect to the Cut-off Date Principal Balances of the
Subsequent Loans, as of the Subsequent Transfer Date; and (2) with
respect to the amount of each Additional Balance created on or
after the Cut-off Date, as of the later of the Subsequent Transfer
Date and the date that the corresponding Draw was made pursuant to
the related Loan Agreement, subject to the receipt by the Servicer
of consideration therefor as provided in Section 3.16 of the
Servicing Agreement and 3.05 of the Indenture.
The Sponsor shall comply with its obligations
set forth in Sections 1. and 2. with respect to the Subsequent
Loans delivered on each Subsequent Transfer Date. References in
such Sections to the Initial Loans or Loans shall be deemed to
refer to the Subsequent Loans and references to the Cut-Off Date or
the Closing Date, as applicable, shall be deemed to refer to the
applicable related Subsequent Transfer Date.
(a) Based on the Initial Certification of the
Custodian, the Indenture Trustee acknowledges receipt by the
Custodian of the documents identified in the Initial Certification
and declares that the Custodian holds such documents and the other
documents delivered to the Custodian constituting the applicable
Loan Files, in trust for the exclusive use and benefit of all
present and future Noteholders, Certificateholders and the Insurer.
The Indenture Trustee acknowledges that it or the Custodian will
maintain possession of the Loans and the Loan Files in the State of
Illinois, as directed by the Purchaser, unless otherwise permitted
by the Rating Agencies.
(b) The Indenture Trustee agrees to deliver on the
Closing Date or Subsequent Transfer Date, as applicable, to the
Purchaser, the Insurer and the Servicer an Initial Certification
from the Custodian (to the extent received by the Indenture Trustee
from the Custodian). Based on its review and examination, and only
as to the documents identified in such Initial Certification, the
Custodian, pursuant to the terms of the Custodial Agreement, will
acknowledge that such documents appear regular on their face and
relate to such Loan. Neither the Indenture Trustee nor the
Custodian shall be under any duty or obligation to inspect, review
or examine said documents, instruments, certificates or other
papers to determine that the same are genuine, enforceable,
recordable or appropriate for the represented purpose or that they
have actually been recorded in the real estate records or that they
are other than what they purport to be on their face; provided,
however, that neither the Indenture Trustee nor the Custodian shall
make any determination as to whether (i) any endorsement is
sufficient to transfer all right, title and interest of the party
so endorsing, as noteholder or assignee thereof, in and to that
Mortgage Note or (ii) any assignment is in recordable form or is
sufficient to effect the assignment of and transfer to the assignee
thereof under the mortgage to which the assignment relates. Not
later than 90 days after the Closing Date or Subsequent Transfer
Date, as applicable, upon receipt of Final Certification from the
Custodian provided for in the Custodial Agreement, the Indenture
Trustee cause to be delivered to the Purchaser, the Sponsor, the
Insurer and the Servicer such Final Certification, with any
applicable exceptions noted thereon.
(c) If, in the course of such review, the Indenture
Trustee is notified by the Custodian that any document constituting
a part of a Loan File does not meet the requirements of Exhibit C
hereto, the Indenture Trustee shall cause the Custodian to list
such as an exception in the Final Certification.
(d) The Sponsor shall promptly correct or cure such
defect within 90 days from the date it is so notified of such
defect and, if the Sponsor does not correct or cure such defect
within such period, the Sponsor shall either (i) substitute for the
related Loan an Eligible Substitute Loan, which substitution shall
be accomplished in the manner and subject to the conditions set
forth in Section 2(d), or (ii) purchase such Loan within 90 days
from the date the Sponsor was notified of such defect in writing at
the Repurchase Price of such Loan if such defect materially and
adversely affects the value of the related Loan or interests of the
Noteholders or the Certificateholders; provided, however, that if
the cure, substitution or repurchase of a Loan pursuant to this
provision is required by reason of a delay in delivery of any
documents by the appropriate recording office, then the Sponsor
shall be given 270 days from the Closing Date to cure such defect
or substitute for, or repurchase such Loan; and further provided,
that the Sponsor shall have no liability for recording any
Assignment of Mortgage in favor of the Indenture Trustee or for the
Servicer’s failure to record such Assignment of Mortgage, and
the Sponsor shall not be obligated to repurchase or cure any Loan
as to which such Assignment of Mortgage is not recorded. Pursuant
to the applicable Custodial Agreement, the Custodian shall deliver
written notice to the Indenture Trustee, and the Indenture Trustee
shall deliver written notice to each Rating Agency and the Insurer
within 270 days from the Closing Date indicating each Mortgage (a)
which has not been returned by the appropriate recording office or
(b) as to which there is a dispute as to location or status of such
Mortgage. Such notice shall be delivered every 90 days thereafter
until the related Mortgage is returned to the Custodian. Any
substitution shall not be effected prior to the additional delivery
to the Indenture Trustee or the Custodian, of a Request for Release
and the Loan File for any such Eligible Substitute Loan. The
Repurchase Price for any such Loan repurchased by the Sponsor shall
be deposited or caused to be deposited by the Servicer in the
Custodial Account maintained by it pursuant to Section 3.02 of the
Servicing Agreement. Upon receipt of such deposit, the Servicer
shall deliver a Request for Release to the Indenture Trustee, with
a copy to the Custodian. The Custodian, pursuant to the terms of
the Custodial Agreement, will release the related Loan File to the
Sponsor and will execute and deliver at the Sponsor’s request
such instruments of transfer or assignment prepared by the Sponsor,
in each case without recourse, representation and warranty or as
shall be necessary to vest in the Sponsor, or its designee, the
interest of the Purchaser, the Issuer, and the Indenture Trustee in
any Loan released pursuant hereto. It is understood and agreed that
the obligation of the Sponsor to cure, substitute for or to
repurchase any Loan which does not meet the requirements of this
Section shall constitute the sole remedy respecting such defect
available to the Indenture Trustee, the Purchaser and any
Noteholder or Certificateholder against the Sponsor.
(e) All of the Loan Files are being held pursuant to
the Custodial Agreement. Notwithstanding anything to the contrary
contained herein, the parties hereto acknowledge that the functions
of the Indenture Trustee with respect to the custody, acceptance,
inspection and release of the Loan Files pursuant to Sections 1 and
2 hereof shall be performed by the Custodian. In connection with
the assignment of any Loan registered on the MERS® System, the
Custodian shall cause, at the Servicer’s expense, as soon as
practicable after the Closing Date, the MERS® System to
indicate that such Loans have been assigned by the Sponsor to the
Indenture Trustee in accordance with this Loan Purchase Agreement,
the Trust Agreement and the Indenture for the benefit of the
Noteholders by including (or deleting, in the case of Loans which
are repurchased in accordance with this Agreement) in such computer
files (a) the code “[IDENTIFY INDENTURE TRUSTEE SPECIFIC
CODE]” in the field “[IDENTIFY THE FIELD NAME FOR
INDENTURE TRUSTEE]” which identifies the Indenture Trustee
and (b) the code “[IDENTIFY SERIES SPECIFIC CODE
NUMBER]” in the field “Pool Field” which
identifies the series of the Notes issued in connection with such
Loans. Indenture Trustee agrees that it will not alter the codes
referenced in this paragraph with respect to any Loan during the
term of this Loan Purchase Agreement unless and until such Loan is
repurchased in accordance with the terms of this Loan Purchase
Agreement..
Section 2.
Representations and
Warranties .
(a)
Representations and Warranties as
to Sponsor . Sponsor
represents and warrants to the Purchaser, the Indenture Trustee,
the Insurer and the Issuer that as of the Closing Date:
(i)
Organization and Good Standing;
Licensing . Sponsor is a
company duly organized, validly existing and in good standing under
the laws of the jurisdiction of its formation and has all licenses
necessary to carry out its business as now being conducted, and is
licensed and qualified to transact business in and is in good
standing under the laws of its state of jurisdiction;
(ii)
Power, Authority and Binding
Obligations . Sponsor has
the power and authority to make, execute, deliver and perform this
Loan Purchase Agreement and all of the transactions contemplated
under this Loan Purchase Agreement, and has taken all necessary
action to authorize the execution, delivery and performance of this
Loan Purchase Agreement. When executed and delivered, this Loan
Purchase Agreement will constitute the legal, valid and binding
obligation of Sponsor enforceable in accordance with its terms,
except as enforcement of such terms may be limited by bankruptcy,
insolvency or similar laws affecting the enforcement of
creditors’ rights generally and by the availability of
equitable remedies;
(iii)
No Conflicts
. Neither the execution and delivery
of this Loan Purchase Agreement, nor the consummation of the
transactions herein contemplated hereby, nor compliance with the
provisions hereof, will conflict with or result in a breach of, or
constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on
Sponsor or its properties or the certificate of incorporation or
by-laws of Sponsor, except those conflicts, breaches or defaults
which would not reasonably be expected to have a material adverse
effect on Sponsor’s ability to enter into this Loan Purchase
Agreement and to consummate the transactions contemplated
hereby;
(iv)
No Consent
. The execution, delivery and
performance by Sponsor of this Loan Purchase Agreement and the
consummation of the transactions contemplated hereby do not require
the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect of,
any state, federal or other governmental authority or agency,
except those consents, approvals, notices, registrations or other
actions as have already been obtained, given or made and conveyance
of the Loans by Sponsor are not subject to bulk transfer or any
similar statutory provisions in effect in any applicable
jurisdiction;
(v)
Enforceability
. This Loan Purchase Agreement has
been duly executed and delivered by Sponsor and, assuming due
authorization, execution and delivery by the Purchaser, the
Indenture Trustee and the Issuer, constitutes a valid and binding
obligation of Sponsor enforceable against it in accordance with its
terms (subject to applicable bankruptcy and insolvency laws and
other similar laws affecting the enforcement of the rights of
creditors generally) and general principles of equity;
(vi)
No Litigation
. There are no actions, litigation,
suits or proceedings pending or threatened against Sponsor before
or by any court, administrative agency, arbitrator or governmental
body (i) with respect to any of the transactions contemplated by
this Loan Purchase Agreement, (ii) on the sale of the Loans, or
(iii) with respect to any other matter which in the judgment of
Sponsor if determined adversely to Sponsor would reasonably be
expected to materially and adversely affect Sponsor’s ability
to perform its obligations under this Loan Purchase Agreement; and
Sponsor is not in default with respect to any order of any court,
administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by
this Loan Purchase Agreement; and
(vii)
Solvent . Sponsor does not believe, nor does it have any
cause or reason to believe, that it cannot perform each and every
covenant contained in this Loan Purchase Agreement. Sponsor is
solvent and the sale of the Loans by it will not cause Sponsor to
become insolvent. The sale of the Loans by Sponsor is not
undertaken with the intent to hinder, delay or defraud any of
Sponsor’s creditors.
(b)
Representations and Warranties as
to Loans . Sponsor hereby
represents and warrants, as to each Loan, that the representations
and warranties set forth on Exhibit B attached hereto are true and
correct as of the Closing Date (or as of the Subsequent Transfer
Date in the case of the Subsequent Loans), except where otherwise
indicated in Exhibit B.
(c)
Representations and Warranties as
to Purchaser . Purchaser
warrants and represents to, and covenants with, Sponsor
that:
(i) Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has all requisite corporate
power and authority to acquire, own and purchase the
Loans;
(ii) Purchaser has full corporate power and authority
to execute, deliver and perform under this Loan Purchase Agreement,
and to consummate the transactions set forth herein. The execution,
delivery and performance by Purchaser of this Loan Purchase
Agreement, and the consummation by it of the transactions
contemplated hereby, have been duly authorized by all necessary
corporate action of Purchaser. This Loan Purchase Agreement has
been duly executed and delivered by Purchaser and constitutes the
valid and legally binding obligation of Purchaser enforceable
against Purchaser in accordance with its respective
terms;
(iii) To the best of Purchaser’s knowledge, no
material consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity
is required to be obtained or made by Purchaser in connection with
the execution, delivery or performance by Purchaser of this Loan
Purchase Agreement, or the consummation by it of the transactions
contemplated hereby;
(iv) Purchaser understands that the Loans have not
been registered under the 1933 Act or the securities laws of any
state:
(v) Purchaser is acquiring the Loans for investment
for its own account only and not for any other person;
(vi) Purchaser considers itself a substantial,
sophisticated institutional investor having such knowledge and
financial and business matters that it is capable of evaluating the
merits and the risks of investment in the Loans;
(vii) Purchaser has been furnished with all
information regarding the Loans that it has requested from
Sponsor;
(viii) Neither Purchaser nor anyone acting on its
behalf has offered, transferred, pledged, sold or otherwise
disposed of the Loans, an interest in the Loans or any other
similar security to, or solicited any offer to buy or accept a
transfer, pledge or other disposition of the Loans, any interest in
the Loans or any other similar security from, or otherwise
approached or negotiated with respect to the Loans, any interest in
the Loans or any other similar security with, any person in any
manner, or made any general solicitation by means of general
advertising or in any other manner, or taken any other action which
would constitute a distribution of the Loans under the 1933 Act or
which would render the disposition of the Loans a violation of
Section 5 of the 1933 Act or require registration pursuant thereto,
nor will it act, nor has it authorized or will it authorize any
person to act, in such manner with respect to the Loans;
and
(ix) Either: (A) Purchaser is not an employee benefit
plan within the meaning of section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), or a
plan within the meaning of section 4975(e)(1) of the Internal
Revenue Code of 1986 as amended (“Code”) (each, a
“Plan”), and Purchaser is not directly or indirectly
purchasing the Loans on behalf of, investment manager of, as named
fiduciary of, as trustee of, or with assets of, a Plan; or (B)
Purchaser’s purchase of the Loans will not result in a
prohibited transaction under section 406 of ERISA or section 4975
of the Code.
(d) Upon discovery by Sponsor or upon notice from
Purchaser, the Issuer, the Owner Trustee, the Servicer, the
Indenture Trustee, the Insurer or the Custodian, as applicable, of
a breach of any representation or warranty of the Sponsor set forth
in Section 2(a) above which materially and adversely affects the
interests of the Securityholders or the Insurer in any Loan,
Sponsor shall, within 90 days of its discovery or its receipt of
notice of such breach, either (i) cure such breach in all material
respects or (ii) to the extent that such breach is with respect to
a Loan or a Basic Document, either (A) repurchase such Loan from
the Trust at the Repurchase Price, or (B) substitute one or more
Eligible Substitute Loans for such loan, in each case in the manner
and subject to the conditions and limitations set forth
below.
Upon discovery by Sponsor or upon notice from
Purchaser, the Issuer, the Servicer, the Owner Trustee, the
Indenture Trustee, the Insurer or the Custodian, as applicable, of
a breach of any representation or warranty set forth in Exhibit B
attached hereto pursuant to Section 2(b) above with respect to any
Loan that materially and adversely affects the interests of the
Securityholders, the Insurer or of Purchaser in such Loan (notice
of which shall be given to Purchaser by Sponsor, if it discovers
the same), notwithstanding Sponsor̵
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