EXECUTION COPY
LOAN PURCHASE AGREEMENT
THIS LOAN PURCHASE AGREEMENT, dated
June 3, 2005, is entered into by and among DLJ Mortgage Capital,
Inc., a Delaware corporation (“Seller”), Credit Suisse
First Boston Mortgage Acceptance Corp., a Delaware corporation
(“Purchaser”), U.S. Bank National Association, as
indenture trustee (the “Indenture Trustee”) and Irwin
Whole Loan Home Equity Trust 2005-B (the
“Issuer”):
WITNESSETH
:
WHEREAS, Seller, 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
“Loans”);
WHEREAS, the parties hereto desire
that: (i) the Seller sell the Loans to the Purchaser on the Closing
Date and thereafter all Additional Balances relating to the Loans
created on or after the Cut-off Date pursuant to the terms of this
Loan Purchase Agreement together with the Basic Documents and (ii)
the Seller make certain representations and warranties on the
Closing Date;
WHEREAS, pursuant to the Trust
Agreement, the Purchaser will sell the 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 Seller to the Purchaser
on the date hereof, the Purchaser shall pay to Seller 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 Loans . (a) Seller hereby sells, transfers,
assigns and otherwise conveys to Purchaser (A) the 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 Loans in accordance with the terms thereof. In addition,
Seller 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 Seller 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.
(b) 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. 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.
(c) The Indenture Trustee agrees to deliver on the
Closing Date to the Purchaser 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, upon receipt of a Final Certification from
the Custodian provided for in the Custodial Agreement, the
Indenture Trustee shall deliver to the Purchaser, the Seller and
the Servicer such Final Certification, with any applicable
exceptions noted thereon.
(d) 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.
(e) The Seller shall promptly correct or cure such
defect within 90 days from the date it is so notified of such
defect and, if the Seller does not correct or cure such defect
within such period, the Seller 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 Seller 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 Seller 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 Seller 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 Seller shall not be obligated to repurchase or cure any Loan as
to which such Assignment of Mortgage is not recorded. The Indenture
Trustee shall deliver written notice to each Rating Agency
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
shall be deposited by the Seller in the Payment Account on or prior
to the Business Day immediately preceding such Payment Date in the
month following the month of repurchase and, upon receipt of such
deposit, the Custodian, pursuant to the terms of the Custodial
Agreement, will release the related Loan File to the Seller and
will execute and deliver at the Seller’s request such
instruments of transfer or assignment prepared by the Seller, in
each case without recourse, representation and warranty or as shall
be necessary to vest in the Seller, 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 Seller 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 Certificateholder against
the Seller.
(f) 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
Indenture Trustee 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 Seller 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..
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Section 2.
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Representations and Warranties
.
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(a) Representations and Warranties as to
Seller . Seller
represents and warrants to the Purchaser, the Indenture Trustee and
the Issuer that as of the Closing Date:
(i) Organization and Good Standing;
Licensing . Seller 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 . Seller 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 Seller 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
Seller or its properties or the certificate of incorporation or
by-laws of Seller, except those conflicts, breaches or defaults
which would not reasonably be expected to have a material adverse
effect on Seller’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 Seller 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 Seller 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 Seller and, assuming due authorization,
execution and delivery by the Purchaser, the Indenture Trustee and
the Issuer, constitutes a valid and binding obligation of Seller
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 Seller 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
Seller if determined adversely to Seller would reasonably be
expected to materially and adversely affect Seller’s ability
to perform its obligations under this Loan Purchase Agreement; and
Seller 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 . Seller 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. Seller is
solvent and the sale of the Loans by it will not cause Seller
to
become insolvent. The sale of the
Loans by Seller is not undertaken with the intent to hinder, delay
or defraud any of Seller’s creditors.
(b) Representations and Warranties as to
Loans . Seller 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 Cut-off Date, except where otherwise
indicated in Exhibit B.
(c) Representations and Warranties as to
Purchaser . Purchaser
warrants and represents to, and covenants with, Seller
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
Seller;
(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 (“Plan”) within the meaning of
section 3(3) of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”) or a plan (also
“Plan”) within the meaning of section 4975(e)(1) of the
Internal Revenue Code of 1986 as amended (“Code”), 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 Seller or upon notice from
Purchaser, the Issuer, the Owner Trustee, the Indenture Trustee or
any Custodian, as applicable, of a breach of any representation or
warranty of the Seller set forth in Section 2(a) above which
materially and adversely affects the interests of