TRUST AGREEMENT OF HOMEBANC MORTGAGE TRUST 2007-1
EXECUTION
OF
HOMEBANC
MORTGAGE TRUST 2007-1
This
TRUST AGREEMENT (this “Trust Agreement”), is made as of March 29, 2007, by and
among (i) HMB Acceptance Corp., a Delaware corporation, as depositor (the
“Depositor”), (ii) U.S. Bank National Association, a national banking
association, as trustee (the “Trustee”) and (iii) Wilmington Trust Company, a
Delaware banking corporation, as Delaware trustee (the “Delaware Trustee”) (the
Trustee and the Delaware Trustee together, the “Trustees”). The Depositor and
the Trustees hereby agree as follows:
1. Trust.
The
trust created hereby shall be known as HomeBanc Mortgage Trust 2007-1 (the
“Trust”), in which name the Trustee may conduct the business of the Trust, make
and execute contracts, and ▇▇▇ and be sued and exercise all of the powers that
a
Delaware statutory trust may exercise under Chapter 38 of Title 12 of the
Delaware Code, 12 Del.
C.§§ 3801
et seq.
(the
“Statutory Trust Act”).
2. Initial
Trust Estate.
The
Depositor hereby assigns, transfers, conveys and sets over to the Trust the
sum
of $10. The Trustee hereby acknowledges receipt of such amount from the
Depositor, which amount shall constitute the initial trust estate. The Trustee
hereby declares that it will hold the trust estate in trust for the Depositor.
It is the intention of the parties hereto that the Trust created hereby
constitutes a statutory trust under the Statutory Trust Act, and that this
document constitutes the governing instrument of the Trust. The Trustees are
hereby authorized and directed to execute and file a certificate of trust with
the Delaware Secretary of State in accordance with the provisions of the
Statutory Trust Act.
3. Initial
Beneficiary.
The
initial beneficiary of the Trust shall be the Depositor.
4. Duties
and Liabilities of Trustees.
(a) Except
as
otherwise expressly required in Sections 2 or 7 of this Trust Agreement, the
Trustees shall not have any duty or liability with respect to the administration
of the Trust, the investment of the Trust’s property or the payment of dividends
or other distributions of income or principal to the Trust’s beneficiaries, and
no implied obligations shall be inferred from this Trust Agreement on the part
of the Trustees. The Trustees shall not be liable for the acts or omissions
of
the Depositor or any other person who acts on behalf of the Trust nor shall
the
Trustees be liable for any act or omission by them in good faith in accordance
with written directions of the Depositor.
(b) The
Trustees accept the trusts hereby created and agree to perform their respective
duties hereunder but only upon the terms of this Trust Agreement. The Trustees
shall not be personally liable under any circumstances, except for their own
willful misconduct or gross negligence. In particular, but not by way of
limitation:
(i) The
Trustees shall not be personally liable for any error of judgment made in good
faith by an officer or employee of the Trustees;
(ii) No
provision of this Trust Agreement shall require the Trustees to expend or risk
personal funds or otherwise incur any financial liability in the performance
of
its rights or duties hereunder, if the Trustees shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;
(iii) Under
no
circumstance shall the Trustees be personally liable for any representation,
warranty, covenant or indebtedness of the Trust;
(iv) The
Trustees shall not be personally responsible for or in respect of the
genuineness, form or value of the Trust property, the validity or sufficiency
of
this Trust Agreement or for the due execution hereof by the
Depositor;
(v) In
the
event that the Trustee or Delaware Trustee is unsure as to the course of action
to be taken by it hereunder, the Trustee or Delaware Trustee, as applicable,
may
request instructions from the Depositor and to the extent the Trustee or
Delaware Trustee follows such instructions in good faith it shall not be liable
to any person. In the event that no instructions are provided within the time
requested by the Trustee or the Delaware Trustee, it shall have no duty or
liability for its failure to take any action or for any action it takes in
good
faith;
(vi) All
funds
deposited with the Trustee hereunder may be held in a non-interest bearing
trust
account and the Trustee shall not be liable for any interest thereon or for
any
loss as a result of the investment thereof at the direction of the Depositor;
and
(vii) To
the
extent that, at law or in equity, the Trustees have duties and liabilities
relating thereto to the Depositor or the Trust, the Depositor agrees that such
duties and liabilities are replaced by the terms of this Trust
Agreement.
(c) The
Trustees shall incur no liability to anyone in acting upon any document believed
by it to be genuine and believed by it to be signed by the proper party or
parties. The Trustees may accept a certified copy of a resolution of the board
of directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the manner of
ascertainment is not specifically prescribed herein, the Trustees may for all
purposes hereof rely on a certificate, signed by the Depositor, as to such
fact
or matter, and such certificate shall constitute full protection to the Trustees
for any action taken or omitted to be taken by it in good faith in reliance
thereon.
(d) In
the
exercise or administration of the trusts hereunder, the Trustees (i) may act
directly or, at the expense of the Depositor, through agents or attorneys,
and
the Trustees shall not be liable for the default or misconduct of such attorneys
or agents if such agents and attorneys shall have been selected by the Trustees
in good faith, and (ii) may, at the expense of the Depositor, consult with
counsel, accountants and other experts, and it shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the advice
or
opinion of any such counsel, accountants or other experts.
(e) Notwithstanding
anything contained herein to the contrary, the Delaware Trustee shall not be
required to take any action in any jurisdiction other than the State of Delaware
if the taking of such action will (i) require the consent or approval or
authorization or order of or the giving of notice to, or the registration with
or the taking of any other action in respect of, any state or other governmental
authority or agency of any jurisdiction other than the State of Delaware, (ii)
result in any fee, tax or other governmental charge under the laws of any
jurisdiction or any political subdivision thereof in existence becoming payable
by the Delaware Trustee or (iii) subject the Delaware Trustee to personal
jurisdiction in any jurisdiction other than the State of Delaware for causes
of
action arising from acts unrelated to the consummation of the transactions
by
the Delaware Trustee, contemplated hereby.
(f) Except
as
expressly provided in this Section 4, in accepting and performing the trusts
hereby created, the Trustees act solely as trustees hereunder and not in their
individual capacity, and all persons having any claim against the Trustees
by
reason of the transactions contemplated by this Trust Agreement shall look
only
to the Trust’s property for payment or satisfaction thereof.
5. Compensation,
Reimbursement, and Indemnification.
The
Depositor hereby agrees to (i) compensate the Trustees for their services
hereunder in an amount separately agreed to by the Depositor and the Trustee,
(ii) reimburse the Trustees for all reasonable expenses (including reasonable
fees and expenses of counsel and other experts) and (iii) indemnify, defend
and
hold harmless the Trustees and any of the officers, directors, employees and
agents of the Trustees (the “Indemnified Persons”) from and against any and all
losses, damages, liabilities, claims, actions, suits, costs, expenses,
disbursements (including reasonable fees and expenses of its counsel), taxes
and
penalties of any kind and nature whatsoever (collectively, “Expenses”), to the
extent that such Expenses arise out of or are imposed upon or asserted at any
time against such Indemnified Person with respect to the performance of this
Trust Agreement, the creation, operation or termination of the Trust or the
transactions contemplated hereby; provided,
however,
that
the Depositor shall not be required to indemnify any Indemnified Person for
any
Expenses which are a result of the willful misconduct or gross negligence of
such Indemnified Person. The obligations of the Depositor under this Section
5
shall survive the termination of this Trust Agreement.
6. Notice.
Any
notices or other communications to the Depositor or the Trustees may be
delivered to the respective party at the address set forth below.
If
to the
Trustee:
U.S.
Bank
National Association
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Services/HomeBanc 2007-1
If
to the
Delaware Trustee:
Wilmington
Trust Company
▇▇▇▇▇▇
Square North
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
If
to the
Depositor:
HMB
Acceptance Corp.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, EVP Capital Markets
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
with
a
copy to:
HMB
Acceptance Corp.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
7. Delaware
Trustee.
The
Delaware Trustee shall be a trustee hereunder for the sole and limited purpose
of fulfilling the requirements of § 3807(a) of the Statutory Trust
Act.
8. Governing
Law.
This
Trust Agreement shall be governed by and construed in accordance with the laws
of the State of Delaware, without reference to its conflict of law provisions,
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
9. Counterparts.
This
Trust Agreement may be executed in two or more counterparts, each of which
shall
be an original, but all such counterparts shall together constitute one and
the
same agreement.
10. Amendments.
This
Trust Agreement shall be amended and restated by the parties hereto as necessary
to provide for the operation of the Trust; provided, however, that the Trustees
shall not be required to enter into any amendment hereto which adversely affects
the rights, duties or immunities of the Trustees. Prior to the execution and
delivery of such amended and restated Trust Agreement, the Trustees shall not
have any duty or obligation with respect to the operation of the Trust, all
obligations of the Trustees hereunder being limited as set forth in Section
4(a).
11. Successor
Trustee.
Any of
the Trustees may resign upon thirty days prior notice to the Depositor. If
no
successor has been appointed within such thirty day period, the Trustees may,
at
the expense of the Trust, petition a court of competent jurisdiction to appoint
a successor trustee.
12. Integration.
This
Trust Agreement constitutes the entire agreement between the parties hereto
with
respect to the subject matter hereof, and supersedes all prior agreements and
understandings between the parties.
IN
WITNESS WHEREOF, the parties hereto have executed this Declaration as of the
date set forth above.
HMB
ACCEPTANCE CORP., as Depositor
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
U.S.
BANK NATIONAL ASSOCIATION, as Trustee
By:
/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
WILMINGTON
TRUST COMPANY, as Delaware Trustee
By:
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Financial Services Officer
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Financial Services Officer