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[HOMEBANC CORP.],
SELLER
and
HMB ACCEPTANCE CORP.,
DEPOSITOR
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of [ ]
HomeBanc Mortgage Trust [
]
[(Mortgage Pass-Through Certificates, Series
[ ])] [(Mortgage Backed
Notes)]
TABLE OF CONTENTS
Section 1. Sale and Purchase of Mortgage Loans.
2
Section 2. Purchase Price of Mortgage Loans.
2
Section 3. Transfer of the Mortgage Loans.
3
Section 4. Representations and Warranties of the Seller.
4
Section 5. Covenants of the Seller.
6
Section 6. Cure, Repurchase and Substitution Obligations.
7
Section 7. Conditions to Obligation of the Depositor.
8
Section 8. Mandatory Delivery; Grant of Security Interest.
9
Section 9. Indemnification.
9
Section 10. Notices.
11
Section 11. Severability of Provisions.
12
Section 12. Governing Law.
12
Section 13. Agreement of the Seller.
12
Section 14. Survival.
13
Section 15. Assignment; Third Party Beneficiaries.
13
Section 16. Miscellaneous.
13
Section 17. Request for Opinions.
14
Schedule I
Mortgage Loan Schedule
Schedule II
Exceptions to Representations and Warranties
Exhibit A
Representations and Warranties of [HomeBanc Corp.]
MORTGAGE LOAN PURCHASE AGREEMENT
This MORTGAGE LOAN PURCHASE AGREEMENT dated as of [
] (this “Agreement”), is by and
between HMB Acceptance Corp., a Delaware corporation (the
“Depositor”) and [HomeBanc Corp.], a [Georgia]
corporation (the “Seller”).
RECITALS
(1)
Schedule I attached hereto and made a part hereof lists [describe
mortgage pool] (collectively, the “Mortgage Loans”)
currently owned by the Seller that the Seller desires to sell to
the Depositor.
(2)
[The Depositor desires to purchase the Mortgage Loans from the
Seller and intends immediately thereafter to transfer the Mortgage
Loans and any other assets [constituting the Trust Estate]
[included in the Trust Fund], and assign all its rights and
delegate all of its obligations under this Agreement, to [HomeBanc
Mortgage Trust [ ] (the
“Issuer”) pursuant to the terms of a transfer and
servicing agreement (the “Transfer and Servicing
Agreement”) dated as of [ ], among
the Issuer, the Depositor, [HomeBanc Corp.], as Seller and as
servicer (in such capacity, the “Servicer”), [
], as master servicer (in such capacity,
the “Master Servicer”) and as securities administrator
(in such capacity, the “Securities Administrator”), and
[ ], as indenture trustee (in such
capacity, the “Indenture Trustee”)] [[
], as trustee (the “Trustee”)
on behalf of the trust fund created pursuant to the terms of the
pooling and servicing agreement (the “Pooling and Servicing
Agreement”), dated as of [ ], among
the Depositor, [HomeBanc Corp.], as Seller and as servicer (in such
capacity, the “Servicer”), [ ],
as master servicer and the Trustee]. [The Issuer will in turn
pledge the Trust Estate and all such rights and obligations to the
Indenture Trustee for the benefit of the Noteholders.]
(3)
The Issuer will be formed pursuant to [a trust agreement (the
“Trust Agreement”) dated as of [
], among the Depositor, the Securities
Administrator and [ ], as owner Trustee
(the “Owner Trustee”)] [the Pooling and Servicing
Agreement]. The Issuer [(i) pursuant to an indenture (the
“Indenture”) dated as of [ ],
among the Issuer, the Securities Administrator and the Indenture
Trustee, will issue the HomeBanc Mortgage Trust [
] Mortgage Backed Notes (the
“Notes”) and (ii) pursuant to the Trust Agreement will
issue a single class of ownership certificate (the “Ownership
Certificate,” and together with the Notes, the
“Securities”)][pursuant to the Pooling and Servicing
Agreement will issue the HomeBanc Mortgage Trust [
] Mortgage Pass-Through Certificates,
Series [ ]].
(4)
The [Securities][Certificates] to be delivered to the Depositor or
its designee(s), registered in such names as the Depositor shall
designate, will be designated as [(i)] the HomeBanc Mortgage Trust
2005-3 Mortgage [Backed Notes][Pass-Through Certificates, Series [
]], Class [ ],
Class [ ] and Class [
] [,and (ii) the HomeBanc Mortgage Trust [
] Ownership Certificate].
(5)
Capitalized terms used and not defined herein shall have the
meanings assigned to them in the [Transfer] [Pooling] and Servicing
Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises herein made
and other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereby agree as
follows:
Section 1. Sale and Purchase of Mortgage
Loans.
(a)
Subject to the terms and conditions of this Agreement, the Seller
agrees to sell, and the Depositor agrees to purchase, on the date
of issuance of the Securities, which is expected to be on or about
[ ] (the “Closing Date”), the
Mortgage Loans having an aggregate principal balance as of [
] (the “Cut-off Date”), of $[
], including all related [Mortgage Files
and any Insurance Proceeds, REO Property, Liquidation Proceeds] and
other recoveries relating to the Mortgage Loans, and all income,
revenues, issues products, revisions, substitutions, replacements,
profits, rents and all cash and non-cash proceeds of the
foregoing.
(b)
The Seller and the Depositor have agreed upon which of the mortgage
loans owned by the Seller are to be purchased by the Depositor
pursuant to this Agreement, and the Seller has prepared, or has
provided information to the Depositor enabling the Depositor to
prepare, Schedule I attached hereto
(“Schedule I”), setting forth information with
respect to the Mortgage Loans to be purchased by the Depositor as
of the Closing Date. The Seller shall, with the
Depositor’s consent, amend or modify, or provide information
to the Depositor enabling the Depositor to amend or modify
Schedule I on or prior to the Closing Date if necessary to
reflect the actual Mortgage Loans transferred by the Seller and
accepted by the Depositor on the Closing Date.
Schedule I, as so amended or modified, shall conform to
the requirements of the Depositor as set forth in this Agreement
and to the definition of “Mortgage Loan Schedule” under
the [Transfer] [Pooling] and Servicing Agreement, and shall be the
definitive Mortgage Loan Schedule attached as an exhibit to the
Transfer and Servicing Agreement.
Section 2. Purchase Price of Mortgage
Loans.
(a)
On the Closing Date, as full consideration for the Seller’s
sale of the Mortgage Loans to the Depositor, the Depositor shall
deliver to the Seller cash equal to $[
].
(b)
[The Depositor or any assignee or transferee of the Depositor
(which may include the [Issuer, acting on behalf of the
Noteholders][Trustee acting on behalf of the Certificateholders)
shall be entitled to all Monthly Payments due after the Cut-off
Date, and all curtailments or other principal prepayments received
with respect to the Mortgage Loans paid by each borrower after the
Cut-off Date, except that the Depositor or any assignee or
transferee of the Depositor will not be entitled to any
curtailments or other prepayments received on or after the Cut-off
Date but reflected in the aggregate Cut-off Date Balance.]
[All Monthly Payments due on or before the Cut-off Date and
collected on or after the Cut-off Date shall belong to the
Seller.]
(c)
Pursuant to the [Transfer] [Pooling] and Servicing Agreement, the
Depositor will transfer and assign all its right, title and
interest in and to the Mortgage Loans and any other assets
[constituting the Trust Estate] [included in the Trust Fund] to the
[Issuer] [Trustee for the benefit of the Certificateholders]
in consideration of the issuance of the [Securities]
[Certificates] to the Depositor or its designee(s).
Section 3. Transfer of the Mortgage
Loans.
(a)
Mortgage File . For purposes of this Agreement, the
“Mortgage File” will be as defined in the [Transfer]
[Pooling] and Servicing Agreement.
(b)
Transfer of Ownership . Upon the sale of any Mortgage
Loans, the ownership of each Mortgage Loan Document (as defined
below) with respect thereto shall be vested in the Depositor, and
the ownership of all other records and documents with respect
thereto prepared by or which come into the possession of the Seller
shall immediately vest in the Depositor. The Seller shall,
upon the direction of the Depositor, promptly deliver to [
] (the “Custodian”) or such
other designee as the Depositor may direct, any documents that come
into its possession with respect to such Mortgage Loans following
such sale. Prior to such delivery, the Seller shall hold any
such documents for the benefit of the Depositor, its successors and
assigns.
(c)
Delivery of Mortgage Files . To the extent not
previously delivered to the Depositor or a designee of the
Depositor, the Seller shall, not later than [two] Business Days
prior to the Closing Date, at the direction of the Depositor,
deliver to the Custodian, each of the mortgage loan documents
required to be included in the Mortgage File pursuant to Section
[2.01(b)] of the [Transfer] [Pooling] and Servicing Agreement (the
“Mortgage Loan Documents”). The Mortgage Note for
each such Mortgage Loan shall be endorsed in blank or as otherwise
directed by the Depositor, and the Mortgage for each such Mortgage
Loan shall name the Depositor, the Custodian or such other party as
designated by the Depositor as mortgagee or beneficiary, as
appropriate, or be assigned in blank or as otherwise directed by
the Depositor.
Prior to the transfer and sale of any Mortgage Loans, the Mortgage
Loan Documents delivered to the Custodian shall be held by the
Custodian for the benefit of the Seller and the possession by the
Custodian of such Mortgage Loan Documents will be at the will of
the Seller and will be in a custodial capacity only.
Following the transfer and sale of any Mortgage Loans from
the Seller to the Depositor in accordance with the terms and upon
satisfaction of the conditions of this Agreement, the Custodian
will hold all Mortgage Loan Documents delivered to it hereunder for
the benefit of the Depositor, as its agent and bailee. The
Custodian will act as a custodian for the receipt and custody of
all Mortgage Files and, after the transfer of any Mortgage Loans
from the Depositor to the [Issuer] [Trustee], the Custodian will
hold all Mortgage Loan Documents delivered to it hereunder for the
benefit of the [Issuer and on behalf of the Noteholders] [Trustee
for the benefit of the Certificateholders].
(d)
Examination of Mortgage Loan Documents: Acceptance of
Mortgage Loans . To the extent not previously delivered
to the Depositor or a designee of the Depositor, the Seller shall,
prior to the Closing Date either (i) deliver to the Depositor or
its designee in escrow, for examination, the Mortgage Loan
Documents pertaining to each Mortgage Loan then being sold by it or
(ii) make such Mortgage Loan Documents available to the Depositor
or its designee for examination at the Seller’s offices or at
such other place as the Seller shall specify. Any such
Mortgage Loan Documents so held by the Seller and so made available
to the Depositor or its designee shall be held by the Seller and so
made available solely as a matter of convenience to the Depositor
or its designee and in lieu of delivering such Mortgage Loan
Documents to the Depositor or its designee. The Depositor, the
Custodian or a designee of either entity may review the Mortgage
Loan Documents to verify that all documents required to be included
in each Mortgage File (as such term has been defined in the
Transfer and Servicing Agreement) are so included.
Prior to the Closing Date, the Seller shall cause the Custodian to
review the documents delivered pursuant to Section 3(c) hereof to
ascertain that, as to each Mortgage Loan listed on Schedule I, (i)
all documents required to be delivered by the Seller pursuant to
Section 3(c) have been received, (ii) such documents appear regular
on their face and relate to such Mortgage Loan and (iii) the
information on Schedule I accurately reflects the information
set forth in the corresponding Mortgage File, to the extent
required by Section [2.01] of the [Transfer] [Pooling] and
Servicing Agreement. An additional review shall be conducted
by the Custodian or its designee prior to the first anniversary of
the Closing Date to determine that all Mortgage Loan Documents
required to be included in the Mortgage File are included therein.
If at any time the Depositor or the [Indenture] Trustee, or
the Custodian, discovers or receives notice that any Mortgage Loan
Document is missing or defective in any material respect with
respect to any Mortgage Loan, the Seller shall correct or cure any
such omission or defect or, if such omission or defect materially
impairs the value of the Mortgage Loan, repurchase the defective
Mortgage Loan or substitute for such defective Mortgage Loan a
Qualified Substitute Mortgage Loan in accordance with and if
permitted by the terms of Section 6 hereof. At the time of
such repurchase or substitution, the Custodian shall release
documents in its possession relating to such Mortgage Loan to the
Seller. The fact that the Depositor, the [Indenture] Trustee
or a designee of either entity has conducted or has failed to
conduct any partial or complete examination of the Mortgage Loan
Documents prior to the Closing Date shall not affect the rights of
the Depositor (or any assignee or successor thereof) to demand
repurchase or other relief as provided herein.
(e)
Recordation of Assignments of Mortgage . Subject to
the sale of the Mortgage Loans by the Seller to the Depositor, the
Depositor hereby authorizes and instructs the Seller, and the
Seller hereby agrees, to record all Assignments required to be
contained in the Mortgage File to the extent required pursuant to
Section [2.01] of the [Transfer] [Pooling] and Servicing Agreement.
All recording fees relating to the recordation of the
Assignments as described above shall be paid by the Seller.
With respect to any Non-MERS Mortgage Loans, if the
[Indenture] Trustee does not receive, within the time specified in
the [Transfer] [Pooling] and Servicing Agreement, evidence
satisfactory to it of such recording with respect to any Mortgage
Loan to the extent required pursuant to Section [2.01] of the
[Transfer] [Pooling]and Servicing Agreement, the Seller shall, in
cooperation with the [Indenture] Trustee, correct or cure any such
omission or repurchase the affected Mortgage Loan within [90] days
of such demand, which demand shall be made within the time
specified in the [Transfer] [Pooling]and Servicing Agreement
(including any such extensions provided for therein).
Section 4. Representations and Warranties of the Seller.
The Seller hereby represents and warrants to the Depositor as
follows:
(a)
The Seller is a corporation duly organized, validly existing and in
good standing under the laws of the State of [Georgia] and has full
power and authority (i) to conduct its business as presently
conducted by it and (ii) to execute and deliver this Agreement and
perform its obligations under this Agreement. The Seller is
and will remain in compliance with the laws of each state in which
any Mortgaged Property is located to the extent necessary to
perform its obligations in respect of this Agreement.
(b)
The execution and delivery of this Agreement, the performance by
the Seller of its obligations hereunder and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary action on the part of the Seller. This Agreement
has been duly executed and delivered by the Seller and constitutes
a legal, valid and binding obligation of the Seller, enforceable in
accordance with its respective terms subject to bankruptcy,
insolvency, reorganization or similar laws affecting the
enforcement of creditors’ rights generally and to general
principles of equity and public policy considerations underlying
the securities laws, to the extent that such public policy
considerations limit the enforceability of the provisions of this
Agreement which purport to provide indemnification from securities
laws liabilities.
(c)
The execution, delivery and performance of this Agreement by the
Seller, and the consummation of the transactions contemplated
hereby, will not (i) violate or conflict with any law, rule,
regulation, order, judgment, award, administrative interpretation,
injunction, writ, decree or the like affecting the Seller or by
which the Seller is bound or (ii) result in a breach of or
constitute a default (or an event which, with notice or lapse of
time, or both, would constitute a default) under any indenture or
other material agreement to which the Seller is a party or by which
the Seller is bound, which in the case of either clause (i) or (ii)
will have a material adverse effect on the Seller’s ability
to perform its obligations under this Agreement.
(d)
No authorization, consent, approval, license, exemption or other
action by or notice to or registration or filing with any
governmental authority or administrative or regulatory body is
required for either the execution, delivery or performance of this
Agreement by the Seller or the consummation of the transactions
contemplated hereby, except such as shall have been made or
obtained on or prior to the Closing Date.
(e)
There are no pending or, to the best of the Seller’s
knowledge, threatened actions, proceedings or investigations
against the Seller before any court, governmental arbitrator or
instrumentality which if determined adversely to the Seller may
reasonably be expected, individually or in the aggregate, to (i)
have a material and adverse affect on the Seller’s ability to
perform its obligations under this Agreement or (ii) to affect the
legality, validity or enforceability of this Agreement.
(f)
The Seller is solvent and the sale of the Mortgage Loans will not
cause the Seller to become insolvent. The sale of the
Mortgage Loans is not undertaken with the intent to hinder, delay
or defraud any of the Seller’s creditors.
(g)
The transfer of the Mortgage Loans to the Depositor at the Closing
Date will be treated by the Seller for financial accounting and
reporting purposes as a financing.
(h)
The Seller has not dealt with any broker or agent or other Person
who might be entitled to a fee, commission or compensation in
connection with the transaction contemplated by this Agreement
other than the Depositor and its affiliates.
(i)
The Seller is not in default with respect to any order or decree of
any court, regulation or demand of any federal, state, municipal or
governmental agency, which default would materially and adversely
affect the condition (financial or other) or operations of the
Seller or its properties or the consequences of which would have a
material adverse effect on the Seller’s ability to perform
its obligations under this Agreement.
(j)
The transfer, assignment and conveyance of the Mortgage Notes and
the Mortgages by the Seller hereunder are not subject to the bulk
transfer laws or any similar statutory provisions in effect in any
applicable jurisdiction.
(k)
The transactions contemplated by this Agreement are in the ordinary
course of business of the Seller.
(l)
Each of the representations and warranties set forth in Exhibit A
hereto is true and correct with respect to the Mortgage Loans as of
the Closing Date.
(m)
[The Seller has been organized in conformity with the requirements
for qualification as a real estate investment trust (a
“REIT”); the Seller will file with its federal income
tax return for its taxable year ending [ ],
an election to be treated as a REIT for federal income tax
purposes; and the Seller currently qualifies as, and it proposes to
operate in a manner that will enable it to continue to qualify as,
a REIT.]
Section 5. Covenants of the Seller.
The Seller hereby covenants with the Depositor as follows:
(a)
On or before the Closing Date, the Seller shall take all steps
required of it to effectuate the transfer of the Mortgage Loans to
the Issuer, as transferee of the Depositor, free and clear of any
lien, charge or encumbrance.
(b)
The Seller shall use its best efforts to make available to counsel
for the Depositor in executed form each of the documents listed in
Section 7(b) below no later than [two] Business Days before the
Closing Date, it being understood that such documents are to be
released and delivered only on the closing of the transaction
contemplated hereby and the sale of the Securities.
(c)
The Seller shall deliver or cause to be delivered to the Depositor
(i) an Opinion of Counsel as to various corporate matters
substantially in a form satisfactory to the Depositor and (ii) such
other Opinions of Counsel, if any, as are required by any Rating
Agency for the issuance of the ratings on the Notes specified in
Section 7(d) below.
Section 6. Cure, Repurchase and Substitution Obligations.
(a)
Each of the representations and warranties of the Seller contained
herein shall survive the purchase by the Depositor of any of the
Mortgage Loans and shall continue in full force and effect,
notwithstanding any restrictive or qualified endorsement on the
Mortgage Notes and notwithstanding subsequent termination of this
Agreement or the [Transfer] [Pooling]and Servicing Agreement.
The representations and warranties shall not be impaired by
any review and examination of Mortgage Loan Documents or other
documents evidencing or relating to the Mortgage Loans or any
failure on the part of the Depositor to review or examine such
documents and shall inure to the benefit of any assignee,
transferee or designee of the Depositor, including the [Issuer for
the benefit of the Noteholders] [Trustee for the benefit of the
Certificateholdes] and the Custodian. With respect to the
representations and warranties contained herein that are made to
the best of the Seller’s knowledge or as to which the Seller
has no knowledge, if it is discovered by the Seller, the Depositor,
the Custodian or the [Indenture] Trustee that the substance of any
such representation and warranty is inaccurate and such inaccuracy
materially and adversely affects the value of the related Mortgage
Loan, then notwithstanding the Seller’s knowledge or lack of
knowledge with respect to the inaccuracy of such representation and
warranty at the time it was made, the Seller shall take the action
described in the following paragraph in respect of such Mortgage
Loan.
(b)
[Upon discovery or receipt of notice by the Seller, the Depositor,
the [Indenture] Trustee or the Custodian of any missing or
materially defective document in any Mortgage File, or a breach of
any of the Seller’s representations and warranties set forth
in Section 4 hereof with respect to any Mortgage Loan, which in any
of the foregoing cases materially and adversely affects the value
of any Mortgage Loan or the interest therein of the Depositor, the
[Indenture] Trustee or the [Noteholders] [Certificateholders], the
party discovering or receiving notice of such missing or materially
defective document, breach, or default shall give prompt written
notice to the others. Upon its discovery or its receipt of
notice of any such missing or materially defective document, breach
or default (the “Defect Discovery Date”), the Seller
shall either (a) within [90] days of discovery or receipt of such
notice, provide the Custodian with such missing documents or cure
such defect, breach or default, in all material respects or (b)
within [90] days of such discovery or receipt of such notice,
either repurchase the affected Mortgage Loan at the purchase price
therefor or cause the removal of such Mortgage Loan from the Trust
Estate (in which case it shall become a Deleted Mortgage Loan) and
substitute therefor one or more Qualified Substitute Mortgage Loans
as defined in the [Transfer] [Pooling]and Servicing Agreement;
provided, however, that any such substitution shall occur within
[two] years of the Closing Date. The Indenture Trustee or its
designee shall amend the Mortgage Loan Schedule to reflect the
withdrawal of any Mortgage Loan from the terms of this Agreement
and the [Transfer] [Pooling] and Servicing Agreement and the
addition, if any, of a Qualified Substitute Mortgage Loan. In
order to effect a substitution pursuant to this Section, the Seller
will deliver (i) to the Custodian each of the Mortgage Loan
Documents required to be contained in the Mortgage File with
respect to the Substitute Mortgage Loan(s) and (ii) if the
aggregate Scheduled Principal Balance on the date of substitution
of the Qualified Substitute Mortgage Loan(s) is less than the
aggregate Scheduled Principal Balance of the Deleted Mortgage
Loan(s) (after application of Monthly Payments due in the month of
substitution), to the [Issuer] [Trustee] cash in an amount equal to
such substitution adjustment amount. Any repurchase pursuant
to this Section shall be accomplished by the delivery into the
Cu
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