LOAN PURCHASE AGREEMENT
THIS LOAN PURCHASE AGREEMENT, dated
November 4, 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 Home Equity Mortgage Trust 2005-HF1 (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 “Initial
Loans”);
WHEREAS, as of each Subsequent
Transfer Date (as defined below), Seller 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 Seller 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 Seller 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 Seller 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 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 Initial Loans and
Subsequent Loans . Seller
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, Seller has delivered to the
Purchaser or the related 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.
Seller 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
Seller 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, Seller covenants to deliver to the Issuer as
assignee of the Purchaser or the related 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 Seller 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 Certifications
of the Custodians, the Indenture Trustee acknowledges receipt by
the Custodians of the documents identified in the Initial
Certifications and declares that the Custodians hold such documents
and the other documents delivered to the Custodians 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 Custodians will maintain
possession of the Loans and the Loan Files in the State of
Illinois, California or Texas, as applicable, 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 and the Servicer an Initial
Certifications from the
Custodians (to the extent received
by the Indenture Trustee from the Custodians). Based on its review
and examination, and only as to the documents identified in such
Initial Certifications, the Custodians, pursuant to the terms of
the related Custodial Agreement, will acknowledge that such
documents appear regular on their face and relate to such Loan.
Neither the Indenture Trustee nor the Custodians 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 Custodians 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 Certifications from the Custodians provided
for in the Custodial Agreement, the Indenture Trustee cause to be
delivered to the Purchaser, the Seller and the Servicer such Final
Certifications, with any applicable exceptions noted
thereon.
(c)
If, in the course of such review,
the Indenture Trustee is notified by a 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 related
Custodian to list such as an exception in the Final
Certification.
(d)
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. Pursuant to
the applicable Custodial Agreement, the Custodian shall deliver
written notice to the Trust Administrator, and the Trust
Administrator 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 related Custodian.
Any substitution shall not be effected prior to the additional
delivery to the Indenture Trustee or the related 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 Seller shall be deposited or caused to be deposited by the
related Servicer in the Custodial Account maintained by it pursuant
to Section 3.02 of the Servicing
Agreement and, upon receipt of such
deposit, the related Custodian, pursuant to the terms of the
related 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
Noteholder or Certificateholder against the Seller.
(e)
All of the Loan Files are being held
pursuant to the related 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 Custodians. In connection with the assignment of any Loan
registered on the MERS® System, the related Custodian shall
cause, at the related 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 (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, 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, a Servicer,
the Indenture Trustee, the Master Servicer, the Trust Administrator
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 sh