EXECUTION COPY
LOAN PURCHASE AGREEMENT
THIS LOAN PURCHASE AGREEMENT, dated
August 5, 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-C (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 States of California or Utah, 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 Closing 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 the Securityholders in any Loan,
Seller 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 Seller or upon
notice from Purchaser, the Issuer, the Servicer, the Owner Trustee,
the Indenture Trustee or any 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 or of Purchaser in such Loan (notice of which shall
be given to Purchaser by Seller, if it discovers the same),
notwithstanding Seller’s lack of knowledge with respect to
the