HOMEBANC CORP.,
SELLER
and
HMB ACCEPTANCE CORP.,
DEPOSITOR
MORTGAGE LOAN PURCHASE AGREEMENT
Dated as of February 1, 2005
HomeBanc Mortgage Trust 2005-1
(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.
2
Section 4. Representations and Warranties of the Seller.
4
Section 5. Covenants of the Seller.
6
Section 6. Cure, Repurchase and Substitution Obligations.
6
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
Exhibit A
Representations and Warranties of HomeBanc Corp.
MORTGAGE LOAN PURCHASE AGREEMENT
This MORTGAGE LOAN PURCHASE AGREEMENT dated as of February 1, 2005
(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 one pool of
one- to four-family, adjustable rate mortgage loans (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, and
assign all its rights and delegate all of its obligations under
this Agreement, to HomeBanc Mortgage Trust 2005-1 (the
“Issuer”) pursuant to the terms of a transfer and
servicing agreement (the “Transfer and Servicing
Agreement”) dated as of February 1, 2005, among the
Issuer, the Depositor, HomeBanc Corp., as Seller and as servicer
(in such capacity, the “Servicer”), Wells Fargo Bank,
N.A., as master servicer (in such capacity, the “Master
Servicer”) and as securities administrator (in such capacity,
the “Securities Administrator”), and U.S. Bank National
Association, as indenture trustee (in such capacity, the
“Indenture 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 February 1, 2005, among
the Depositor, U.S. Bank National Association, as administrator (in
such capacity, the “Administrator”) and Wilmington
Trust Company, as owner Trustee (the “Owner Trustee”).
The Issuer (i) pursuant to an indenture (the
“Indenture”) dated as of February 1, 2005, between the
Issuer and the Indenture Trustee, will issue the HomeBanc Mortgage
Trust 2005-1 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”).
(4)
The Securities 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 2005-1 Mortgage
Backed Notes, Class A-1, Class A-2, Class M-1, Class M-2, Class
M-3, Class M-4, Class M-5, Class M-6, Class B-1 and Class B-2, and
(ii) the HomeBanc Mortgage Trust 2005-1 Ownership Certificate.
(5)
Capitalized terms used and not defined herein shall have the
meanings assigned to them in the Transfer 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
February 23, 2005 (the “Closing Date”), the Mortgage
Loans having an aggregate principal balance as of February 1, 2005
(the “Cut-off Date”), of $1,097,833,204.51, 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 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 $1,097,833,204.51.
(b)
The Depositor or any assignee or transferee of the Depositor (which
may include the Issuer, acting on behalf of the Noteholders) 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 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 to the Issuer in consideration of the issuance of the
Securities 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 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 JPMorgan
Chase Bank, National Association (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 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, the Custodian will hold all
Mortgage Loan Documents delivered to it hereunder for the benefit
of the Issuer and on behalf of the Noteholders.
(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 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 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 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 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 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 December 31, 2004, 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 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
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, 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 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 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
cash in an amount equal to such substitution adjustment amount.
Any repurchase pursuant to this Section shall be accomplished
by the delivery into the Custodial Account, or at the direction of
the Depositor, on (or determined as of) the last day of the
calendar month in which such repurchase is made, of the purchase
price for the Mortgage Loans to be repurchased.
(c)
In addition to such repurchase or substitution obligation, the
Seller shall indemnify the Depositor and hold it harmless against
any losses, damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgments, and other costs
and expenses resulting from any claim, demand, defense or assertion
based on or grounded upon, or resulting from, a breach of the
Seller’s repr
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