RESIDENTIAL FUNDING CORPORATION,
as Master Servicer
HOME LOAN TRUST 2001-HI1,
as Issuer
and
THE CHASE MANHATTAN BANK
as Indenture Trustee
----------------------
SERVICING AGREEMENT
Dated as of February 22, 2001
----------------------
Home Loans
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
Section 1.01. DEFINITIONS.....................................................................................1
Section 1.02. OTHER DEFINITIONAL PROVISIONS...................................................................1
Section 1.03. INTEREST CALCULATIONS...........................................................................2
ARTICLE II
Representations and Warranties
Section 2.01. REPRESENTATIONS AND WARRANTIES REGARDING THE MASTER SERVICER....................................3
Section 2.02. REPRESENTATIONS AND WARRANTIES OF THE ISSUER....................................................4
Section 2.03. ENFORCEMENT OF REPRESENTATIONS AND WARRANTIES...................................................4
ARTICLE III
Administration and Servicing
of Home Loans
Section 3.01. THE MASTER SERVICER.............................................................................6
Section 3.02. COLLECTION OF CERTAIN HOME LOAN PAYMENTS........................................................8
Section 3.03. WITHDRAWALS FROM THE CUSTODIAL ACCOUNT.........................................................11
Section 3.04. MAINTENANCE OF HAZARD INSURANCE; PROPERTY PROTECTION EXPENSES..................................12
Section 3.05. MODIFICATION AGREEMENTS; RELEASE OR SUBSTITUTION OF LIEN.......................................13
Section 3.06. TRUST ESTATE; RELATED DOCUMENTS................................................................15
Section 3.07. REALIZATION UPON DEFAULTED HOME LOANS; LOSS MITIGATION.........................................16
Section 3.08. ISSUER AND INDENTURE TRUSTEE TO COOPERATE......................................................18
Section 3.09. SERVICING COMPENSATION; PAYMENT OF CERTAIN EXPENSES BY MASTER SERVICER.........................19
Section 3.10. ANNUAL STATEMENT AS TO COMPLIANCE..............................................................19
Section 3.11. ANNUAL SERVICING REPORT........................................................................20
Section 3.12. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING THE HOME LOANS
..............................................................................................20
Section 3.13. MAINTENANCE OF CERTAIN SERVICING INSURANCE POLICIES............................................20
Section 3.14. INFORMATION REQUIRED BY THE INTERNAL REVENUE SERVICE AND REPORTS OF FORECLOSURES
AND ABANDONMENTS OF MORTGAGED PROPERTY.........................................................20
Section 3.15. OPTIONAL REPURCHASE OF DEFAULTED HOME LOANS....................................................21
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ARTICLE IV
Servicing Certificate
Section 4.01. STATEMENTS TO SECURITYHOLDERS..................................................................22
Section 4.02. TAX REPORTING..................................................................................24
ARTICLE V
Payment Account
Section 5.01. PAYMENT ACCOUNT................................................................................25
ARTICLE VI
The Master Servicer
Section 6.01. LIABILITY OF THE MASTER SERVICER...............................................................26
Section 6.02. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF, THE MASTER SERVICER...........26
Section 6.03. LIMITATION ON LIABILITY OF THE MASTER SERVICER AND OTHERS......................................26
Section 6.04. MASTER SERVICER NOT TO RESIGN..................................................................27
Section 6.05. DELEGATION OF DUTIES...........................................................................28
Section 6.06. MASTER SERVICER TO PAY INDENTURE TRUSTEE'S AND OWNER TRUSTEE'S FEES AND EXPENSES;
INDEMNIFICATION................................................................................28
ARTICLE VII
Default
Section 7.01. SERVICING DEFAULT..............................................................................30
Section 7.02. INDENTURE TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR.............................................32
Section 7.03. NOTIFICATION TO SECURITYHOLDERS................................................................33
ARTICLE VIII
Miscellaneous Provisions
Section 8.01. AMENDMENT......................................................................................34
Section 8.02. GOVERNING LAW..................................................................................34
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Section 8.03. NOTICES........................................................................................34
Section 8.04. SEVERABILITY OF PROVISIONS.....................................................................35
Section 8.05. THIRD-PARTY BENEFICIARIES......................................................................35
Section 8.06. COUNTERPARTS...................................................................................35
Section 8.07. EFFECT OF HEADINGS AND TABLE OF CONTENTS.......................................................35
Section 8.08. TERMINATION UPON PURCHASE BY THE MASTER SERVICER OR LIQUIDATION OF ALL HOME
LOANS; PARTIAL REDEMPTION......................................................................35
Section 8.09. CERTAIN MATTERS AFFECTING THE INDENTURE TRUSTEE................................................36
Section 8.10. OWNER TRUSTEE NOT LIABLE FOR RELATED DOCUMENTS.................................................37
EXHIBIT A - HOME LOAN SCHEDULE...............................................A-1
EXHIBIT B - POWER OF ATTORNEY................................................B-1
EXHIBIT C - FORM OF REQUEST FOR RELEASE......................................D-1
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This is a Servicing Agreement, dated as of February 22, 2001,
among Residential Funding Corporation (the "Master Servicer"), the Home Loan
Trust 2001-HI1 (the "Issuer") and The Chase Manhattan Bank (the "Indenture
Trustee").
W I T N E S S E T H T H A T:
WHEREAS, pursuant to the terms of the Home Loan Purchase
Agreement, Residential Funding Corporation (in its capacity as Seller) will sell
to the Depositor the Home Loans together with the Related Documents on the
Closing Date;
WHEREAS, the Depositor will sell the Home Loans and all of its
rights under the Home Loan Purchase Agreement to the Issuer, together with the
Related Documents on the Closing Date;
WHEREAS, pursuant to the terms of the Trust Agreement, the
Issuer will issue and transfer to or at the direction of the Depositor, the
Certificates;
WHEREAS, pursuant to the terms of the Indenture, the Issuer
will issue and transfer to or at the direction of the Depositor, the Notes; and
WHEREAS, pursuant to the terms of this Servicing Agreement,
the Master Servicer will service the Home Loans directly or through one or more
Subservicers;
NOW, THEREFORE, in consideration of the mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions
Section 1.01. DEFINITIONS. For all purposes of this Servicing
Agreement, except as otherwise expressly provided herein or unless the context
otherwise requires, capitalized terms not otherwise defined herein shall have
the meanings assigned to such terms in the Definitions contained in Appendix A
to the Indenture dated February 22, 2001 (the "Indenture"), between Home Loan
Trust 2001-HI1, as issuer, and The Chase Manhattan Bank, as indenture trustee,
which is incorporated by reference herein. All other capitalized terms used
herein shall have the meanings specified herein.
Section 1.02. OTHER DEFINITIONAL PROVISIONS. (a) All terms defined in
this Servicing Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As used in this Servicing Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Servicing Agreement or in any such certificate or other
document, and accounting terms partly defined in this Servicing Agreement or in
any such certificate or other document, to the extent not defined, shall have
the respective meanings given to them under generally accepted accounting
principles. To the extent that the definitions of accounting terms in this
Servicing Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted accounting
principles, the definitions contained in this Servicing Agreement or in any such
certificate or other document shall control.
(c) The words "hereof," "herein," "hereunder" and words of similar
import when used in this Servicing Agreement shall refer to this Servicing
Agreement as a whole and not to any particular provision of this Servicing
Agreement; Section and Exhibit references contained in this Servicing Agreement
are references to Sections and Exhibits in or to this Servicing Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation".
(d) The definitions contained in this Servicing Agreement are
applicable to the singular as well as the plural forms of such terms and to the
masculine as well as the feminine and neuter genders of such terms.
(e) Any agreement, instrument or statute defined or referred to herein
or in any instrument or certificate delivered in connection herewith means such
agreement, instrument or statute as from time to time amended, modified or
supplemented and includes (in the case of agreements or instruments) references
to all attachments thereto and instruments incorporated therein; references to a
Person are also to its permitted successors and assigns.
Section 1.03. INTEREST CALCULATIONS. All calculations of interest
hereunder that are made in respect of the Loan Balance of a Home Loan shall be
made in accordance with the Mortgage Note. All calculations of interest on the
Securities shall be made on the basis of a 30-day month and a year assumed to
consist of 360 days. The calculation of the Servicing Fee shall be made on the
basis of a 30-day month and a year assumed to consist of 360 days. All dollar
amounts calculated hereunder shall be rounded to the nearest xxxxx with one-half
of one xxxxx being rounded up.
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ARTICLE II
Representations and Warranties
Section 2.01. REPRESENTATIONS AND WARRANTIES REGARDING THE MASTER
SERVICER. The Master Servicer represents and warrants to the Issuer and for the
benefit of the Indenture Trustee, as pledgee of the Home Loans, as of the
Cut-off Date:
(i) The Master Servicer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Delaware and has the corporate power to own its assets and to
transact the business in which it is currently engaged. The Master
Servicer is duly qualified to do business as a foreign corporation and
is in good standing in each jurisdiction in which the character of the
business transacted by it or properties owned or leased by it requires
such qualification and in which the failure to so qualify would have a
material adverse effect on the business, properties, assets, or
condition (financial or other) of the Master Servicer;
(ii) The Master Servicer has the power and authority to
make, execute, deliver and perform this Servicing Agreement and all of
the transactions contemplated under this Servicing Agreement, and has
taken all necessary corporate action to authorize the execution,
delivery and performance of this Servicing Agreement. When executed and
delivered, this Servicing Agreement will constitute the legal, valid
and binding obligation of the Master Servicer 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) The Master Servicer is not required to obtain the
consent of any other Person or any consent, license, approval or
authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Servicing Agreement, except for such consent, license, approval or
authorization, or registration or declaration, as shall have been
obtained or filed, as the case may be;
(iv) The execution and delivery of this Servicing
Agreement and the performance of the transactions contemplated hereby
by the Master Servicer will not violate any provision of any existing
law or regulation or any order or decree of any court applicable to the
Master Servicer or any provision of the Certificate of Incorporation or
Bylaws of the Master Servicer, or constitute a material breach of any
mortgage, indenture, contract or other agreement to which the Master
Servicer is a party or by which the Master Servicer may be bound; and
(v) No litigation or administrative proceeding of or
before any court, tribunal or governmental body is currently pending,
or to the knowledge of the Master
3
Servicer threatened, against the Master Servicer or any of its
properties or with respect to this Servicing Agreement or the
Securities which in the opinion of the Master Servicer has a reasonable
likelihood of resulting in a material adverse effect on the
transactions contemplated by this Servicing Agreement.
The foregoing representations and warranties shall survive any
termination of the Master Servicer hereunder.
Section 2.02. REPRESENTATIONS AND WARRANTIES OF THE ISSUER. The Issuer
hereby represents and warrants to the Master Servicer and for the benefit of the
Indenture Trustee, as pledgee of the Home Loans, as of the Cut-off Date:
(i) The Issuer is a business trust duly formed and in
good standing under the laws of the State of Delaware and has full
power, authority and legal right to execute and deliver this Servicing
Agreement and to perform its obligations under this Servicing
Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Servicing Agreement;
and
(ii) The execution and delivery by the Issuer of this
Servicing Agreement and the performance by the Issuer of its
obligations under this Servicing Agreement will not violate any
provision of any law or regulation governing the Issuer or any order,
writ, judgment or decree of any court, arbitrator or governmental
authority or agency applicable to the Issuer or any of its assets. Such
execution, delivery, authentication and performance will not conflict
with, or result in a breach or violation of, any mortgage, deed of
trust, lease or other agreement or instrument to which the Issuer is
bound.
Section 2.03. ENFORCEMENT OF REPRESENTATIONS AND WARRANTIES. The Master
Servicer, on behalf of and subject to the direction of the Indenture Trustee, as
pledgee of the Home Loans, or the Issuer, shall enforce the representations and
warranties of the Seller pursuant to the Home Loan Purchase Agreement. Upon the
discovery by the Seller, the Depositor, the Master Servicer, the Indenture
Trustee, the Credit Enhancer, the Issuer, or any Custodian of a breach of any of
the representations and warranties made in the Home Loan Purchase Agreement or
of the existence of a Repurchase Event, in respect of any Home Loan which
materially and adversely affects the interests of the Securityholders or the
Credit Enhancer, the party discovering such breach or existence shall give
prompt written notice to the other parties. The Master Servicer shall promptly
notify the Seller of such breach or existence and request that, pursuant to the
terms of the Home Loan Purchase Agreement, the Seller either (i) cure such
breach or Repurchase Event in all material respects within 45 days (with respect
to a breach of the representations and warranties contained in Section 3.1(a) of
the Home Loan Purchase Agreement or Repurchase Event) or 90 days (with respect
to a breach of the representations and warranties contained in Section 3.1(b) of
the Home Loan Purchase Agreement) from the date the Seller was notified of such
breach or Repurchase Event or (ii) purchase such Home Loan from the Issuer at
the price and in the manner set forth in Section 3.1(b) of the Home Loan
Purchase Agreement; PROVIDED that the Seller shall, subject to compliance
4
with all the conditions set forth in the Home Loan Purchase Agreement, have the
option to substitute an Eligible Substitute Loan or Loans for such Home Loan. In
the event that the Seller elects to substitute one or more Eligible Substitute
Loans pursuant to Section 3.1(b) of the Home Loan Purchase Agreement, the Seller
shall deliver to the Issuer with respect to such Eligible Substitute Loans, the
original Mortgage Note, the Mortgage, and such other documents and agreements as
are required by the Home Loan Purchase Agreement. Payments due with respect to
Eligible Substitute Loans in the month of substitution shall not be transferred
to the Issuer and will be retained by the Master Servicer and remitted by the
Master Servicer to the Seller on the next succeeding Payment Date provided a
payment at least equal to the applicable Monthly Payment has been received by
the Issuer for such month in respect of the Home Loan to be removed. The Master
Servicer shall amend or cause to be amended the Home Loan Schedule to reflect
the removal of such Home Loan and the substitution of the Eligible Substitute
Loans and the Master Servicer shall promptly deliver the amended Home Loan
Schedule to the Owner Trustee and the Indenture Trustee.
It is understood and agreed that the obligation of the Seller to cure
such breach or purchase or substitute for such Home Loan as to which such a
breach has occurred and is continuing shall constitute the sole remedy
respecting such breach available to the Issuer and the Indenture Trustee, as
pledgee of the Home Loans, against the Seller. In connection with the purchase
of or substitution for any such Home Loan by the Seller, the Issuer shall assign
to the Seller all of its right, title and interest in respect of the Home Loan
Purchase Agreement applicable to such Home Loan. Upon receipt of the Repurchase
Price, or upon completion of such substitution, the Master Servicer shall notify
the Custodian and then the Custodian shall deliver the Mortgage Files to the
Master Servicer, together with all relevant endorsements and assignments
prepared by the Master Servicer which the Indenture Trustee shall execute.
5
ARTICLE III
Administration and Servicing
of Home Loans
Section 3.01. THE MASTER SERVICER. (a) The Master Servicer shall
service and administer the Home Loans in accordance with the terms of this
Servicing Agreement, following such procedures as it would employ in its good
faith business judgment and which are normal and usual in its general mortgage
servicing activities, and shall have full power and authority, acting alone or
through a subservicer, to do any and all things in connection with such
servicing and administration which it may deem necessary or desirable, it being
understood, however, that the Master Servicer shall at all times remain
responsible to the Issuer and the Indenture Trustee for the performance of its
duties and obligations hereunder in accordance with the terms hereof. Without
limiting the generality of the foregoing, the Master Servicer shall continue,
and is hereby authorized and empowered by the Issuer and the Indenture Trustee,
as pledgee of the Home Loans, to execute and deliver, on behalf of itself, the
Issuer, the Indenture Trustee or any of them, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, or of
consent to modification in connection with a proposed conveyance, or of
assignment of any Mortgage and Mortgage Note in connection with the repurchase
of a Home Loan and all other comparable instruments with respect to the Home
Loans and with respect to the Mortgaged Properties, or with respect to the
modification or re-recording of a Mortgage for the purpose of correcting the
Mortgage, the subordination of the lien of the Mortgage in favor of a public
utility company or government agency or unit with powers of eminent domain, the
taking of a deed in lieu of foreclosure, the commencement, prosecution or
completion of judicial or non-judicial foreclosure, the acquisition of any
property acquired by foreclosure or deed in lieu of foreclosure, or the
management, marketing and conveyance of any property acquired by foreclosure or
deed in lieu of foreclosure. The Issuer, the Indenture Trustee and the
Custodian, as applicable, shall furnish the Master Servicer with any powers of
attorney and other documents necessary or appropriate to enable the Master
Servicer to carry out its servicing and administrative duties hereunder. In
addition, the Master Servicer may, at its own discretion and on behalf of the
Indenture Trustee, obtain credit information in the form of a Credit Score from
a credit repository. On the Closing Date, the Indenture Trustee shall deliver to
the Master Servicer a limited power of attorney substantially in the form of
Exhibit B hereto.
If the Mortgage relating to a Home Loan did not have a lien senior to
the Home Loan on the related Mortgaged Property as of the Cut-off Date, then the
Master Servicer, in such capacity, may not consent to the placing of a lien
senior to that of the Mortgage on the related Mortgaged Property. If the
Mortgage relating to a Home Loan had a lien senior to the Home Loan on the
related Mortgaged Property as of the Cut-off Date, then the Master Servicer, in
such capacity, may consent to the refinancing of the prior senior lien, provided
that the following requirements are met:
(i) (A) the Mortgagor's debt-to-income ratio resulting from
such refinancing is less than the original debt-to-income ratio as set
forth on the Mortgage Loan Schedule and, in the event that the
resulting Combined Loan-to-Value Ratio ("Combined Loan-to-Value
6
Ratio") of such Home Loan increases by more than 10% above the Combined
Loan-to-Value Ratio prior to such refinancing, the Master Servicer
shall obtain the prior consent of the Credit Enhancer, which consent
shall not be unreasonably withheld; PROVIDED, HOWEVER, that in no
instance shall the resulting Combined Loan-to-Value Ratio of such Home
Loan be higher than that permitted by the Program Guide; or
(B) the resulting Combined Loan-to-Value Ratio of
such Home Loan is no higher than the Combined Loan-to-Value Ratio prior
to such refinancing; PROVIDED, HOWEVER, if such refinanced mortgage
loan is a "rate and term" mortgage loan (meaning, the Mortgagor does
not receive any cash from the refinancing), the Combined Loan-to-Value
Ratio may increase to the extent of either (a) the reasonable closing
costs of such refinancing or (b) any decrease in the value of the
related Mortgaged Property, if the Mortgagor is in good standing as
defined by the Program Guide;
(ii) the interest rate, or, in the case of an adjustable rate existing
senior lien, the maximum interest rate, for the loan evidencing the refinanced
senior lien is no more than 2.0% higher than the interest rate or the maximum
interest rate, as the case may be, on the loan evidencing the existing senior
lien immediately prior to the date of such refinancing; PROVIDED, HOWEVER (a) if
the loan evidencing the existing senior lien prior to the date of refinancing
has an adjustable rate and the loan evidencing the refinanced senior lien has a
fixed rate, then the current interest rate on the loan evidencing the refinanced
senior lien may be up to 2.0% higher than the then-current loan rate of the loan
evidencing the existing senior lien and (b) if the loan evidencing the existing
senior lien prior to the date of refinancing has a fixed rate and the loan
evidencing the refinanced senior lien has an adjustable rate, then the maximum
interest rate on the loan evidencing the refinanced senior lien shall be less
than or equal to (x) the interest rate on the loan evidencing the existing
senior lien prior to the date of refinancing plus (y) 2.0%; and
(iii) the loan evidencing the refinanced senior lien is not subject to
negative amortization.
The relationship of the Master Servicer (and of any successor to the
Master Servicer as servicer under this Servicing Agreement) to the Issuer under
this Servicing Agreement is intended by the parties to be that of an independent
contractor and not that of a joint venturer, partner or agent.
(b) The Master Servicer may continue in effect Subservicing Agreements
entered into by Residential Funding and Subservicers prior to the execution and
delivery of this Agreement, and may enter into Subservicing Agreements with
Subservicers for the servicing and administration of certain of the Home Loans.
Each Subservicer of a Home Loan shall be entitled to receive and retain, as
provided in the related Subservicing Agreement and in Section 3.02, the related
Subservicing Fee from payments of interest received on such Home Loan after
payment of all amounts required to be remitted to the Master Servicer in respect
of such Home Loan. For any Home Loan not subject to a Subservicing Agreement,
the Master Servicer shall be entitled to receive and retain an amount equal to
the Subservicing Fee from payments of interest. References in this Servicing
Agreement to actions taken or to be taken by the Master Servicer in servicing
the Home Loans include actions
7
taken or to be taken by a Subservicer on behalf of the Master Servicer. Each
Subservicing Agreement will be upon such terms and conditions as are not
inconsistent with this Servicing Agreement and as the Master Servicer and the
Subservicer have agreed. With the approval of the Master Servicer, a Subservicer
may delegate its servicing obligations to third-party servicers, but such
Subservicers will remain obligated under the related Subservicing Agreements.
The Master Servicer and the Subservicer may enter into amendments to the related
Subservicing Agreements; PROVIDED, HOWEVER, that any such amendments shall not
cause the Home Loans to be serviced in a manner that would be materially
inconsistent with the standards set forth in this Servicing Agreement. The
Master Servicer shall be entitled to terminate any Subservicing Agreement in
accordance with the terms and conditions thereof and without any limitation by
virtue of this Servicing Agreement; PROVIDED, HOWEVER, that in the event of
termination of any Subservicing Agreement by the Master Servicer or the
Subservicer, the Master Servicer shall either act as servicer of the related
Home Loan or enter into a Subservicing Agreement with a successor Subservicer
which will be bound by the terms of the related Subservicing Agreement. The
Master Servicer shall be entitled to enter into any agreement with a Subservicer
for indemnification of the Master Servicer and nothing contained in this
Servicing Agreement shall be deemed to limit or modify such indemnification.
In the event that the rights, duties and obligations of the Master
Servicer are terminated hereunder, any successor to the Master Servicer in its
sole discretion may, to the extent permitted by applicable law, terminate the
existing Subservicing Agreement with any Subservicer in accordance with the
terms of the applicable Subservicing Agreement or assume the terminated Master
Servicer's rights and obligations under such subservicing arrangements which
termination or assumption will not violate the terms of such arrangements.
As part of its servicing activities hereunder, the Master Servicer, for
the benefit of the Securityholders and the Credit Enhancer, shall use reasonable
efforts to enforce the obligations of each Subservicer under the related
Subservicing Agreement, to the extent that the non-performance of any such
obligation would have a material adverse effect on a Home Loan. Such
enforcement, including, without limitation, the legal prosecution of claims,
termination of Subservicing Agreements and the pursuit of other appropriate
remedies, shall be in such form and carried out to such an extent and at such
time as the Master Servicer would employ in its good faith business judgment and
which are normal and usual in its general mortgage servicing activities. The
Master Servicer shall pay the costs of such enforcement at its own expense, and
shall be reimbursed therefor only (i) from a general recovery resulting from
such enforcement to the extent, if any, that such recovery exceeds all amounts
due in respect of the related Home Loan or (ii) from a specific recovery of
costs, expenses or attorneys fees against the party against whom such
enforcement is directed.
Section 3.02. COLLECTION OF CERTAIN HOME LOAN PAYMENTS. (a) The Master
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Home Loans, and shall, to the extent such
procedures shall be consistent with this Servicing Agreement and generally
consistent with any related insurance policy, follow such collection procedures
as it would employ in its good faith business judgment and which are normal and
usual
8
in its general mortgage servicing activities. Consistent with the foregoing, and
without limiting the generality of the foregoing, the Master Servicer may in its
discretion waive any late payment charge, prepayment charge or penalty interest
or other fees which may be collected in the ordinary course of servicing such
Home Loan. The Master Servicer may also extend the Due Date for payment due on a
Home Loan in accordance with the Program Guide, PROVIDED, HOWEVER, that the
Master Servicer shall first determine that any such waiver or extension will not
impair the coverage of any related insurance policy or materially adversely
affect the lien of the related Mortgage (except as described below) or the
interests of the Securityholders and the Credit Enhancer. Consistent with the
terms of this Servicing Agreement, the Master Servicer may also:
(i) waive, modify or vary any term of any Home Loan;
(ii) consent to the postponement of strict compliance with any such
term or in any manner grant indulgence to any Mortgagor;
(iii) arrange with a Mortgagor a schedule for the payment of principal
and interest due and unpaid;
(iv) forgive any portion of the amounts contractually owed under the
Home Loan;
(v) capitalize past due amounts owed under the Home Loan by adding any
amounts in arrearage to the existing principal balance of the Home Loan
(a "Capitalization Workout") of which will result in an increased
Monthly Payment amount, provided that: (A) the amount added to the
existing principal balance of the Home Loan (the "Capitalized Amount")
shall be no greater than five times the Mortgagor's current Monthly
Payment amount; and (B) the Master Servicer shall not enter into a
Capitalization Workout unless the Combined Loan-to- Value Ratio of the
Home Loan prior to the Capitalization Workout equals or exceeds 80% and
the Mortgagor has qualified for the Capitalization Workout under the
Master Servicer's servicing guidelines;
(vi) reset the due date for the Home Loan, or any combination of the
foregoing;
if in the Master Servicer's determination such waiver, modification,
postponement or indulgence, arrangement or other action referred to above is not
materially adverse to the interests of the Securityholders or the Credit
Enhancer and is generally consistent with the Master Servicer's policies with
respect to mortgage loans similar to those in the Home Loan Pool (meaning,
mortgage loans used for home improvement or debt consolidation); PROVIDED,
HOWEVER, that the Master Servicer may not modify or permit any Subservicer to
modify any Home Loan (including without limitation any modification that would
change the Loan Rate, forgive the payment of any principal or interest (unless
in connection with the liquidation of the related Home Loan) or extend the final
maturity date of such Home Loan) unless such Home Loan is in default or, in the
judgment of the Master Servicer, such default is reasonably foreseeable. The
general terms of any waiver, modification, postponement or indulgence with
respect to any of the Home Loans will be included in the Servicing Certificate,
9
and such Home Loans will not be considered "delinquent" for the purposes of the
Basic Documents so long as the Mortgagor complies with the terms of such waiver,
modification, postponement or indulgence.
(b) The Master Servicer shall establish a Custodial Account, which
shall be an Eligible Account in which the Master Servicer shall deposit or cause
to be deposited any amounts representing payments and collections in respect of
the Home Loans received by it subsequent to the Cut-off Date (other than in
respect of the payments referred to in the following paragraph) within one
Business Day following receipt thereof (or otherwise on or prior to the Closing
Date), including the following payments and collections received or made by it
(without duplication):
(i) all payments of principal or interest on the Home
Loans received by the Master Servicer from the respective Subservicer,
net of any portion of the interest thereof retained by the Subservicer
as Subservicing Fees;
(ii) the aggregate Repurchase Price of the Home Loans
purchased by the Master Servicer pursuant to Section 3.15;
(iii) Net Liquidation Proceeds net of any related
Foreclosure Profit;
(iv) all proceeds of any Home Loans repurchased by the
Seller pursuant to the Home Loan Purchase Agreement, and all
Substitution Adjustment Amounts required to be deposited in connection
with the substitution of an Eligible Substitute Loan pursuant to the
Home Loan Purchase Agreement;
(v) insurance proceeds, other than Net Liquidation
Proceeds, resulting from any insurance policy maintained on a Mortgaged
Property; and
(vi) amounts required to be paid by the Master Servicer
pursuant to Sections 3.04 and 8.08.
PROVIDED, HOWEVER, that with respect to each Collection Period, the Master
Servicer shall be permitted to retain from payments in respect of interest on
the Home Loans, the Master Servicing Fee for such Collection Period. The
foregoing requirements respecting deposits to the Custodial Account are
exclusive, it being understood that, without limiting the generality of the
foregoing, the Master Servicer need not deposit in the Custodial Account amounts
representing Foreclosure Profits, prepayment penalties, fees (including annual
fees) or late charge penalties payable by Mortgagors (such amounts to be
retained as additional servicing compensation in accordance with Section 3.09
hereof), or amounts received by the Master Servicer for the accounts of
Mortgagors for application towards the payment of taxes, insurance premiums,
assessments and similar items. In the event any amount not required to be
deposited in the Custodial Account is so deposited, the Master Servicer may at
any time withdraw such amount from the Custodial Account, any provision herein
to the contrary notwithstanding. The Custodial Account may contain funds that
belong to one or more trust
10
funds created for the notes or certificates of other series and may contain
other funds respecting payments on other mortgage loans belonging to the Master
Servicer or serviced or master serviced by it on behalf of others.
Notwithstanding such commingling of funds, the Master Servicer shall keep
records that accurately reflect the funds on deposit in the Custodial Account
that have been identified by it as being attributable to the Home Loans and
shall hold all collections in the Custodial Account to the extent they represent
collections on the Home Loans for the benefit of the Trust, the Securityholders
and the Indenture Trustee, as their interests may appear. The Master Servicer
shall retain all Foreclosure Profits as additional servicing compensation.
The Master Servicer may cause the institution maintaining the Custodial
Account to invest any funds in the Custodial Account in Permitted Investments
(including obligations of the Master Servicer or any of its Affiliates, if such
obligations otherwise qualify as Permitted Investments), which shall mature not
later than the Business Day preceding the next Payment Date and which shall not
be sold or disposed of prior to its maturity. Except as provided above, all
income and gain realized from any such investment shall inure to the benefit of
the Master Servicer and shall be subject to its withdrawal or order from time to
time. The amount of any losses incurred in respect of the principal amount of
any such investments shall be deposited in the Custodial Account by the Master
Servicer out of its own funds immediately as realized.
(c) The Master Servicer will require each Subservicer to hold all funds
constituting collections on the Home Loans, pending remittance thereof to the
Master Servicer, in one or more accounts meeting the requirements of an Eligible
Account, and invested in Permitted Investments.
Section 3.03. WITHDRAWALS FROM THE CUSTODIAL ACCOUNT. The Master
Servicer shall, from time to time as provided herein, make withdrawals from the
Custodial Account of amounts on deposit therein pursuant to Section 3.02 that
are attributable to the Home Loans for the following purposes:
(i) to deposit in the Payment Account, on the Business
Day prior to each Payment Date, an amount equal to the Interest
Collections and Principal Collections required to be distributed on
such Payment Date;
(ii) to the extent deposited to the Custodial Account,
to reimburse itself or the related Subservicer for previously
unreimbursed expenses incurred in maintaining individual insurance
policies pursuant to Section 3.04, or Liquidation Expenses, paid
pursuant to Section 3.07 or otherwise reimbursable pursuant to the
terms of this Servicing Agreement (to the extent not payable pursuant
to Section 3.09), such withdrawal right being limited to amounts
received on particular Home Loans (other than any Repurchase Price in
respect thereof) which represent late recoveries of the payments for
which such advances were made, or from related Liquidation Proceeds or
the proceeds of the purchase of such Home Loan;
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(iii) to pay to itself out of each payment received on
account of interest on a Home Loan as contemplated by Section 3.09, an
amount equal to the related Master Servicing Fee (to the extent not
retained pursuant to Section 3.02), and to pay to any Subservicer any
Subservicing Fees not previously withheld by the Subservicer;
(iv) to the extent deposited in the Custodial Account to
pay to itself as additional servicing compensation any interest or
investment income earned on funds deposited in the Custodial Account
and Payment Account that it is entitled to withdraw pursuant to
Sections 3.02(b) and 5.01;
(v) to the extent deposited in the Custodial Account,
to pay to itself as additional servicing compensation any Foreclosure
Profits;
(vi) to pay to itself or the Seller, with respect to any
Home Loan or property acquired in respect thereof that has been
purchased or otherwise transferred to the Seller, the Master Servicer
or other entity, all amounts received thereon and not required to be
distributed to Securityholders as of the date on which the related
Purchase Price or Repurchase Price is determined; and
(vii) to withdraw any other amount deposited in the
Custodial Account that was not required to be deposited therein
pursuant to Section 3.02.
Since, in connection with withdrawals pursuant to clauses (ii), (iii), (v) and
(vi), the Master Servicer's entitlement thereto is limited to collections or
other recoveries on the related Home Loan, the Master Servicer shall keep and
maintain separate accounting, on a Home Loan by Home Loan basis, for the purpose
of justifying any withdrawal from the Custodial Account pursuant to such
clauses. Notwithstanding any other provision of this Servicing Agreement, the
Master Servicer shall be entitled to reimburse itself for any previously
unreimbursed expenses incurred pursuant to Section 3.07 or otherwise
reimbursable pursuant to the terms of this Servicing Agreement that the Master
Servicer determines to be otherwise nonrecoverable (except with respect to any
Home Loan as to which the Repurchase Price has been paid), by withdrawal from
the Custodial Account of amounts on deposit therein attributable to the Home
Loans on any Business Day prior to the Payment Date succeeding the date of such
determination.
Section 3.04. MAINTENANCE OF HAZARD INSURANCE; PROPERTY PROTECTION
EXPENSES. The Master Servicer shall cause to be maintained for each Home Loan
hazard insurance naming the Master Servicer or related Subservicer as loss payee
thereunder providing extended coverage in an amount which is at least equal to
at least 100% of the insurable value of the improvements (guaranteed
replacement) or the sum of the unpaid principal balance of the first mortgage
loan and the Home Loan amount. The Master Servicer shall also cause to be
maintained on property acquired upon foreclosure, or deed in lieu of
foreclosure, of any Home Loan, fire insurance with extended coverage in an
amount which is at least equal to the amount necessary to avoid the application
of any co- insurance clause contained in the related hazard insurance policy.
Amounts collected by the Master
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Servicer under any such policies (other than amounts to be applied to the
restoration or repair of the related Mortgaged Property or property thus
acquired or amounts released to the Mortgagor in accordance with the Master
Servicer's normal servicing procedures) shall be deposited in the Custodial
Account to the extent called for by Section 3.02. In cases in which any
Mortgaged Property is located at any time during the life of a Home Loan in a
federally designated flood area, the hazard insurance to be maintained for the
related Home Loan shall include flood insurance (to the extent available). All
such flood insurance shall be in amounts equal to the lesser of (i) the amount
required to compensate for any loss or damage to the Mortgaged Property on a
replacement cost basis and (ii) the maximum amount of such insurance available
for the related Mortgaged Property under the national flood insurance program
(assuming that the area in which such Mortgaged Property is located is
participating in such program). The Master Servicer shall be under no obligation
to require that any Mortgagor maintain earthquake or other additional insurance
and shall be under no obligation itself to maintain any such additional
insurance on property acquired in respect of a Home Loan, other than pursuant to
such applicable laws and regulations as shall at any time be in force and as
shall require such additional insurance. If the Master Servicer shall obtain and
maintain a blanket policy consistent with its general mortgage servicing
activities insuring against hazard losses on all of the Home Loans, it shall
conclusively be deemed to have satisfied its obligations as set forth in the
first sentence of this Section 3.04, it being understood and agreed that such
blanket policy may contain a deductible clause, in which case the Master
Servicer shall, in the event that there shall not have been maintained on the
related Mortgaged Property a policy complying with the first sentence of this
Section 3.04 and there shall have been a loss which would have been covered by
such policy, deposit in the Custodial Account the amount not otherwise payable
under the blanket policy because of such deductible clause. Any such deposit by
the Master Servicer shall be made on the last Business Day of the Collection
Period in the month in which payments under any such policy would have been
deposited in the Custodial Account. In connection with its activities as
servicer of the Home Loans, the Master Servicer agrees to present, on behalf of
itself, the Issuer and the Indenture Trustee, claims under any such blanket
policy.
Section 3.05. MODIFICATION AGREEMENTS; RELEASE OR SUBSTITUTION OF LIEN.
(a) The Master Servicer or the related Subservicer, as the case may be, shall be
entitled to (A) execute assumption agreements, modification agreements,
substitution agreements, and instruments of satisfaction or cancellation or of
partial or full release or discharge, or any other document contemplated by this
Servicing Agreement and other comparable instruments with respect to the Home
Loans and with respect to the Mortgaged Properties subject to the Mortgages (and
the Issuer and the Indenture Trustee each shall promptly execute any such
documents on request of the Master Servicer) and (B) approve the granting of an
easement thereon in favor of another Person, any alteration or demolition of the
related Mortgaged Property or other similar matters, in each case if it has
determined, exercising its good faith business judgment in the same manner as it
would if it were the owner of the related Home Loan, that the security for, and
the timely and full collectability of, such Home Loan would not be adversely
affected thereby. A partial release pursuant to this Section 3.05 shall be
permitted only if the Combined Loan-to-Value Ratio for such Home Loan after such
partial release does not exceed the Combined Loan-to-Value Ratio for such Home
Loan as of the Cut-off
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Date. Any fee collected by the Master Servicer or the related Subservicer for
processing such request will be retained by the Master Servicer or such
Subservicer as additional servicing compensation.
(b) The Master Servicer may enter into an agreement with a Mortgagor to
release the lien on the Mortgaged Property relating to a Home Loan (the
"Existing Lien"), if at the time of such agreement the Home Loan is current in
payment of principal and interest, under any of the following circumstances:
(i) in any case in which, simultaneously with the release of
the Existing Lien, the Mortgagor executes and delivers to the Master
Servicer a Mortgage on a substitute Mortgaged Property, provided that
the Combined Loan-to-Value Ratio of the Home Loan (calculated based on
the Appraised Value of the substitute Mortgaged Property) is not
greater than the Combined Loan-to-Value Ratio prior to releasing the
Existing Lien;
(ii) in any case in which, simultaneously with the release of
the Existing Lien, the Mortgagor executes and delivers to the Master
Servicer a Mortgage on a substitute Mortgaged Property, provided that:
(A) the Combined Loan-to-Value Ratio of the Home Loan (calculated based
on the Appraised Value of the substitute Mortgaged Property) is not
greater than the lesser of (1) 125% and (2) 105% of the Combined
Loan-to-Value Ratio prior to releasing the Existing Lien; and (B) the
Master Servicer determines that at least two appropriate compensating
factors are present (compensating factors may include, without
limitation, an increase in the Mortgagor's monthly cash flow after debt
service, the Mortgagor's debt-to-income ratio has not increased since
origination, or an increase in the Mortgagor's credit score); or
(iii) in any case in which, at the time of release of the
Existing Lien, the Mortgagor does not provide the Master Servicer with
a Mortgage on a substitute Mortgaged Property (any Home Loan that
becomes and remains unsecured in accordance with this subsection, an
"Unsecured Loan"), provided that: (A) the Mortgagor, in addition to
being current in payment of principal and interest on the related Home
Loan, is current in payment of principal and interest on any loan
senior to the Home Loan; (B) the Mortgagor's Credit Score, as
determined by the Master Servicer at the time of the request for
release of lien, is not less than 640; (C) the Mortgagor makes a cash
contribution in reduction of the outstanding principal balance of the
Home Loan, which may include any net proceeds from the sale of the
original Mortgaged Property, of not less than 20% of the unpaid
principal balance of the Home Loan; and (D) the Mortgagor signs a
reaffirmation agreement acknowledging that they must continue to pay in
accordance with the terms of the original Mortgage Note.
(iv) If the above conditions (iii)(A) through (iii)(D) are not
met, the Master Servicer may still enter into an agreement to release
the Existing Lien, provided that: (A) the Master Servicer shall not
permit the release of an Existing Lien under this clause (iii) as to
more than 200 Home Loans in any calendar year; (B) at no time shall the
aggregate Principal
14
Balance of Unsecured Loans exceed 5% of the then Pool Balance; (C) the
Mortgagor agrees to an automatic debit payment plan; and (D) the Master
Servicer shall provide notice to each Rating Agency that has requested
notice of such releases.
In connection with any Unsecured Loan, the Master Servicer may require
the Mortgagor to enter into an agreement under which: (i) the Loan Rate may be
increased effective until a substitute Mortgage meeting the criteria under (i)
or (ii) above is provided; or (ii) any other provision may be made which the
Master Servicer considers to be appropriate. Thereafter, the Master Servicer
shall determine in its discretion whether to accept any proposed Mortgage on any
substitute Mortgaged Property as security for the Home Loan, and the Master
Servicer may require the Mortgagor to agree to any further conditions which the
Master Servicer considers appropriate in connection with such substitution,
which may include a reduction of the Loan Rate (but not below the Loan Rate in
effect at the Closing Date). Any Home Loan as to which a Mortgage on a
substitute Mortgaged Property is provided in accordance with the preceding
sentence shall no longer be deemed to be an Unsecured Loan.
Section 3.06. TRUST ESTATE; RELATED DOCUMENTS. (a) When required by the
provisions of this Servicing Agreement, the Issuer or the Indenture Trustee
shall execute instruments to release property from the terms of the Trust
Agreement, Indenture or Custodial Agreement, as applicable, or convey the
Issuer's or the Indenture Trustee's interest in the same, in a manner and under
circumstances which are not inconsistent with the provisions of this Servicing
Agreement. No party relying upon an instrument executed by the Issuer or the
Indenture Trustee as provided in this Section 3.06 shall be bound to ascertain
the Issuer's or the Indenture Trustee's authority, inquire into the satisfaction
of any conditions precedent or see to the application of any monies.
(b) If from time to time the Master Servicer shall deliver to the
Custodian copies of any written assurance, assumption agreement or substitution
agreement or other similar agreement pursuant to Section 3.05, the Custodian
shall check that each of such documents purports to be an original executed copy
(or a copy of the original executed document if the original executed copy has
been submitted for recording and has not yet been returned) and, if so, shall
file such documents, and upon receipt of the original executed copy from the
applicable recording office or receipt of a copy thereof certified by the
applicable recording office shall file such originals or certified copies with
the Related Documents. If any such documents submitted by the Master Servicer do
not meet the above qualifications, such documents shall promptly be returned by
the Custodian to the Master Servicer pursuant to the related Custodial
Agreement, with a direction to the Master Servicer to forward the correct
documentation.
(c) Upon receipt of a Request for Release from the Master Servicer, to
the effect that a Home Loan has been the subject of a final payment or a
prepayment in full and the related Home Loan has been terminated or that
substantially all Liquidation Proceeds which have been determined by the Master
Servicer in its reasonable judgment to be finally recoverable have been
recovered, and upon deposit to the Custodial Account of such final monthly
payment, prepayment in full together with accrued and unpaid interest to the
date of such payment with respect to such Home Loan or, if
15
applicable, Liquidation Proceeds, the Custodian shall promptly release the
Related Documents to the Master Servicer pursuant to the related Custodial
Agreement, which the Indenture Trustee shall execute, along with such documents
as the Master Servicer or the Mortgagor may request to evidence satisfaction and
discharge of such Home Loan, upon request of the Master Servicer. If from time
to time and as appropriate for the servicing or foreclosure of any Home Loan,
the Master Servicer requests the Custodian to release the Related Documents and
delivers to the Custodian a trust receipt reasonably satisfactory to the
Custodian and signed by a Responsible Officer of the Master Servicer, the
Custodian shall release the Related Documents to the Master Servicer pursuant to
the related Custodial Agreement. If such Home Loans shall be liquidated and the
Custodian receives a certificate from the Master Servicer as provided above,
then, upon request of the Master Servicer, the Custodian shall release the trust
receipt to the Master Servicer pursuant to the related Custodial Agreement.
Section 3.07. REALIZATION UPON DEFAULTED HOME LOANS; LOSS MITIGATION.
With respect to such of the Home Loans as come into and continue in default, the
Master Servicer will decide whether to (i) foreclose upon the Mortgaged
Properties securing such Home Loans, (ii) write off the unpaid principal balance
of the Home Loans as bad debt, (iii) take a deed in lieu of foreclosure, (iv)
accept a short sale (a payoff of the Home Loan for an amount less than the total
amount contractually owed in order to facilitate a sale of the Mortgaged
Property by the Mortgagor) or permit a short refinancing (a payoff of the Home
Loan for an amount less than the total amount contractually owed in order to
facilitate refinancing transactions by the Mortgagor not involving a sale of the
Mortgaged Property), (v) arrange for a repayment plan, (vi) agree to a
modification in accordance with this Servicing Agreement, or (vii) take an
unsecured note, in connection with a negotiated release of the lien of the
Mortgage in order to facilitate a settlement with the Mortgagor; in each case
subject to the rights of any related first lien holder; PROVIDED that in
connection with the foregoing if the Master Servicer has actual knowledge that
any Mortgaged Property is affected by hazardous or toxic wastes or substances
and that the acquisition of such Mortgaged Property would not be commercially
reasonable, then the Master Servicer will not cause the Issuer or the Indenture
Trustee to acquire title to such Mortgaged Property in a foreclosure or similar
proceeding. In connection with such decision, the Master Servicer shall follow
such practices (including, in the case of any default on a related senior
mortgage loan, the advancing of funds to correct such default if deemed to be
appropriate by the Master Servicer) and procedures as it shall deem necessary or
advisable and as shall be normal and usual in its general mortgage servicing
activities and as shall be required or permitted by the Program Guide; PROVIDED
that the Master Servicer shall not be liable in any respect hereunder if the
Master Servicer is acting in connection with any such foreclosure or attempted
foreclosure which is not completed or other conversion in a manner that is
consistent with the provisions of this Servicing Agreement. The foregoing is
subject to the proviso that the Master Servicer shall not be required to expend
its own funds in connection with any foreclosure or attempted foreclosure which
is not completed or towards the correction of any default on a related senior
mortgage loan or restoration of any property unless it shall determine that such
expenditure will increase Net Liquidation Proceeds. In the event of a
determination by the Master Servicer that any such expenditure previously made
pursuant to this Section 3.07 will not be reimbursable from Net
16
Liquidation Proceeds, the Master Servicer shall be entitled to reimbursement of
its funds so expended pursuant to Section 3.03.
Notwithstanding any provision of this Servicing Agreement, a Home Loan
may be deemed to be finally liquidated if substantially all amounts expected by
the Master Servicer to be received in connection with the related defaulted Home
Loan have been received; provided, however, the Master Servicer shall treat any
Home Loan that is 180 days or more delinquent as having been finally liquidated.
Any subsequent collections with respect to any such Home Loan shall be deposited
to the Custodial Account. For purposes of determining the amount of any
Liquidation Proceeds or Insurance Proceeds, or other unscheduled collections,
the Master Servicer may take into account minimal amounts of additional receipts
expected to be received or any estimated additional liquidation expenses
expected to be incurred in connection with the related defaulted Home Loan.
In the event that title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be issued to the Indenture Trustee, who shall hold the same on behalf of
the Issuer in accordance with Section 3.13 of the Indenture. Notwithstanding any
such acquisition of title and cancellation of the related Home Loan, such
Mortgaged Property shall (except as otherwise expressly provided herein) be
considered to be an outstanding Home Loan held as an asset of the Issuer until
such time as such property shall be sold.
Any proceeds from the purchase or repurchase of any Home Loan pursuant
to the terms of this Servicing Agreement (including without limitation Sections
2.03 and 3.15) will be applied in the following order of priority: first, to the
Master Servicer or the related Subservicer, all Servicing Fees payable therefrom
to the Payment Date on which such amounts are to be deposited in the Payment
Account; second, as Interest Collections, accrued and unpaid interest on the
related Home Loan, at the Net Loan Rate to the Payment Date on which such
amounts are to be deposited in the Payment Account; and third, as Principal
Collections, as a recovery of principal on the Home Loan.
Liquidation Proceeds with respect to a Liquidated Home Loan will be
applied in the following order of priority: first, to reimburse the Master
Servicer or the related Subservicer in accordance with this Section 3.07 for any
Liquidation Expenses; second, to the Master Servicer or the related Subservicer,
all unpaid Servicing Fees through the date of receipt of the final Liquidation
Proceeds; third, as Principal Collections, as a recovery of principal on the
Home Loan, up to an amount equal to the Loan Balance of the related Home Loan
immediately prior to the date it became a Liquidated Home Loan; fourth, as
Interest Collections, accrued and unpaid interest on the related Home Loan at
the Net Loan Rate through the date of receipt of the final Liquidation Proceeds;
and fifth, to Foreclosure Profits.
Proceeds and other recoveries from a Home Loan after it becomes a
Liquidated Home Loan will be applied in the following order of priority: first,
to reimburse the Master Servicer or the related Subservicer in accordance with
this Section 3.07 for any expenses previously unreimbursed from Liquidation
Proceeds or otherwise; second, to the Master Servicer or the related
Subservicer, all unpaid Servicing Fees payable thereto through the date of
receipt of the proceeds previously
17
unreimbursed from Liquidation Proceeds or otherwise; third, as Interest
Collections, up to an amount equal to the sum of (a) the Loan Balance of the
related Home Loan immediately prior to the date it became a Liquidated Home
Loan, less any Net Liquidation Proceeds previously received with respect to such
Home Loan and applied as a recovery of principal, and (b) accrued and unpaid
interest on the related Home Loan at the Net Loan Rate through the date of
receipt of the proceeds; and fourth, to Foreclosure Profits.
Section 3.08. ISSUER AND INDENTURE TRUSTEE TO COOPERATE. On or before
each Payment Date, the Master Servicer will notify the Indenture Trustee or the
Custodian, with a copy to the Issuer, of the termination of or the payment in
full and the termination of any Home Loan during the preceding Collection
Period. Upon receipt of payment in full, the Master Servicer is authorized to
execute, pursuant to the authorization contained in Section 3.01, if the
assignments of Mortgage have been recorded if required under the Home Loan
Purchase Agreement, an instrument of satisfaction regarding the related
Mortgage, which instrument of satisfaction shall be recorded by the Master
Servicer if required by applicable law and be delivered to the Person entitled
thereto. It is understood and agreed that any expenses incurred in connection
with such instrument of satisfaction or transfer shall be reimbursed from
amounts deposited in the Custodial Account. From time to time and as appropriate
for the servicing or foreclosure of any Home Loan, the Indenture Trustee or the
Custodian shall, upon request of the Master Servicer and delivery to the
Indenture Trustee or Custodian, with a copy to the Issuer, of a Request for
Release, signed by a Servicing Officer, release or cause to be released the
related Mortgage File to the Master Servicer and the Issuer or Indenture Trustee
shall promptly execute such documents, in the forms provided by the Master
Servicer, as shall be necessary for the prosecution of any such proceedings or
the taking of other servicing actions. Such trust receipt shall obligate the
Master Servicer to return the Mortgage File to the Indenture Trustee or the
Custodian (as specified in such receipt) when the need therefor by the Master
Servicer no longer exists unless the Home Loan shall be liquidated, in which
case, upon receipt of a certificate of a Servicing Officer similar to that
hereinabove specified, the trust receipt shall be released to the Master
Servicer.
In order to facilitate the foreclosure of the Mortgage securing any
Home Loan that is in default following recordation of the assignments of
Mortgage in accordance with the provisions of the Home Loan Purchase Agreement,
the Indenture Trustee or the Issuer shall, if so requested in writing by the
Master Servicer, promptly execute an appropriate assignment in the form provided
by the Master Servicer to assign such Home Loan for the purpose of collection to
the Master Servicer (any such assignment shall unambiguously indicate that the
assignment is for the purpose of collection only), and, upon such assignment,
such assignee for collection will thereupon bring all required actions in its
own name and otherwise enforce the terms of the Home Loan and deposit or credit
the Net Liquidation Proceeds, exclusive of Foreclosure Profits, received with
respect thereto in the Custodial Account. In the event that all delinquent
payments due under any such Home Loan are paid by the Mortgagor and any other
defaults are cured, then the assignee for collection shall promptly reassign
such Home Loan to the Indenture Trustee and return all Related Documents to the
place where the related Mortgage File was being maintained.
18
In connection with the Issuer's obligation to cooperate as provided in
this Section 3.08 and all other provisions of this Servicing Agreement requiring
the Issuer to authorize or permit any actions to be taken with respect to the
Home Loans, the Indenture Trustee, as pledgee of the Home Loans and as assignee
of record of the Home Loans on behalf of the Issuer pursuant to Section 3.13 of
the Indenture, expressly agrees, on behalf of the Issuer, to take all such
actions on behalf of the Issuer and to promptly execute and return all
instruments reasonably required by the Master Servicer in connection therewith;
PROVIDED that if the Master Servicer shall request a signature of the Indenture
Trustee, on behalf of the Issuer, the Master Servicer will deliver to the
Indenture Trustee an Officer's Certificate stating that such signature is
necessary or appropriate to enable the Master Servicer to carry out its
servicing and administrative duties under this Servicing Agreement.
Section 3.09. SERVICING COMPENSATION; PAYMENT OF CERTAIN EXPENSES BY
MASTER SERVICER. The Master Servicer shall be entitled to receive the Master
Servicing Fee in accordance with Sections 3.02 and 3.03 as compensation for its
services in connection with servicing the Home Loans. Moreover, additional
servicing compensation in the form of late payment charges, prepayment charges,
investment income on amounts in the Custodial Account or the Payment Account and
other receipts not required to be deposited in the Custodial Account as
specified in Section 3.02 shall be retained by the Master Servicer. The Master
Servicer shall be required to pay all expenses incurred by it in connection with
its activities hereunder (including payment of all other fees and expenses not
expressly stated hereunder to be for the account of the Securityholders,
including, without limitation, the fees and expenses of the Owner Trustee,
Indenture Trustee and any Custodian) and shall not be entitled to reimbursement
therefor.
Section 3.10. ANNUAL STATEMENT AS TO COMPLIANCE. (a) The Master
Servicer will deliver to the Issuer, the Underwriters and the Indenture Trustee,
with a copy to the Credit Enhancer, on or before March 31 of each year,
beginning March 31, 2002, an Officer's Certificate stating that (i) a review of
the activities of the Master Servicer during the preceding calendar year and of
its performance under servicing agreements, including this Servicing Agreement
has been made under such officer's supervision and (ii) to the best of such
officer's knowledge, based on such review, the Master Servicer has complied in
all material respects with the minimum servicing standards set forth in the
Uniform Single Attestation Program for Mortgage Bankers and has fulfilled all of
its material obligations in all material respects throughout such year, or, if
there has been material noncompliance with such servicing standards or a default
in the fulfillment in all material respects of any such obligation relating to
this Servicing Agreement, such statement shall include a description of such
noncompliance or specify each such default, as the case may be, known to such
officer and the nature and status thereof.
(b) The Master Servicer shall deliver to the Issuer and the Indenture
Trustee, with a copy to the Credit Enhancer, promptly after having obtained
knowledge thereof, but in no event later than five Business Days thereafter,
written notice by means of an Officer's Certificate of any event which with the
giving of notice or the lapse of time or both, would become a Servicing Default.
19
Section 3.11. ANNUAL SERVICING REPORT. On or before March 31 of each
year, beginning March 31, 2002, the Master Servicer at its expense shall cause a
firm of nationally recognized independent public accountants (who may also
render other services to the Master Servicer) to furnish a report to the Issuer,
the Indenture Trustee, the Depositor, the Underwriters, the Credit Enhancer and
each Rating Agency stating its opinion that, on the basis of an examination
conducted by such firm substantially in accordance with standards established by
the American Institute of Certified Public Accountants, the assertions made
pursuant to Section 3.10 regarding compliance with the minimum servicing
standards set forth in the Uniform Single Attestation Program for Mortgage
Bankers during the preceding calendar year are fairly stated in all material
respects, subject to such exceptions and other qualifications that, in the
opinion of such firm, such accounting standards require it to report. In
rendering such statement, such firm may rely, as to matters relating to the
direct servicing of such Home Loans by Subservicers, upon comparable statements
for examinations conducted by independent public accountants substantially in
accordance with standards established by the American Institute of Certified
Public Accountants (rendered within one year of such statement) with respect to
such Subservicers.
Section 3.12. ACCESS TO CERTAIN DOCUMENTATION AND INFORMATION REGARDING
THE HOME LOANS. Whenever required by statute or regulation, the Master Servicer
shall provide to the Credit Enhancer, any Securityholder upon reasonable request
(or a regulator for a Securityholder) or the Indenture Trustee, reasonable
access to the documentation regarding the Home Loans such access being afforded
without charge but only upon reasonable request and during normal business hours
at the offices of the Master Servicer. Nothing in this Section 3.12 shall
derogate from the obligation of the Master Servicer to observe any applicable
law prohibiting disclosure of information regarding the Mortgagors and the
failure of the Master Servicer to provide access as provided in this Section
3.12 as a result of such obligation shall not constitute a breach of this
Section 3.12.
Section 3.13. MAINTENANCE OF CERTAIN SERVICING INSURANCE POLICIES. The
Master Servicer shall during the term of its service as servicer maintain in
force (i) a policy or policies of insurance covering errors and omissions in the
performance of its obligations as master servicer hereunder and (ii) a fidelity
bond in respect of its officers, employees or agents. Each such policy or
policies and bond shall be at least equal to the coverage that would be required
by FNMA or FHLMC, whichever is greater, for Persons performing servicing for
loans similar to the Home Loans purchased by such entity.
Section 3.14. INFORMATION REQUIRED BY THE INTERNAL REVENUE SERVICE AND
REPORTS OF FORECLOSURES AND ABANDONMENTS OF MORTGAGED PROPERTY. The Master
Servicer shall prepare and deliver all federal and state information reports
when and as required by all applicable state and federal income tax laws. In
particular, with respect to the requirement under Section 6050J of the Code to
the effect that the Master Servicer or Subservicer shall make reports of
foreclosures and abandonments of any mortgaged property for each year beginning
in 2001, the Master Servicer or Subservicer shall file reports relating to each
instance occurring during the previous calendar year in which the Master
Servicer (i) on behalf of the Issuer, acquires an interest in any Mortgaged
Property through foreclosure or other comparable conversion in full or partial
satisfaction of a Home
20
Loan, or (ii) knows or has reason to know that any Mortgaged Property has been
abandoned. The reports from the Master Servicer or Subservicer shall be in form
and substance sufficient to meet the reporting requirements imposed by Section
6050J and Section 6050H (reports relating to mortgage interest received) of the
Code.
Section 3.15. OPTIONAL REPURCHASE OF DEFAULTED HOME LOANS.
Notwithstanding any provision in Section 3.07 to the contrary, the Master
Servicer, at its option and in its sole discretion, may repurchase any Home Loan
delinquent in payment for a period of 60 days or longer for a price equal to the
Repurchase Price.
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ARTICLE IV
Servicing Certificate
Section 4.01. STATEMENTS TO SECURITYHOLDERS. (a) With respect to each
Payment Date, on the Business Day following the related Determination Date, the
Master Servicer shall forward to the Indenture Trustee and the Indenture Trustee
pursuant to Section 3.26 of the Indenture shall forward or cause to be forwarded
by mail or otherwise make available electronically to each Certificateholder,
Noteholder, the Credit Enhancer, the Depositor, the Owner Trustee, the
Certificate Paying Agent and each Rating Agency, a statement setting forth the
following information (the "Servicing Certificate") as to the Notes and
Certificates, to the extent applicable:
(i) the aggregate amount of (a) Interest Collections, (b)
Principal Collections and (c) Substitution Adjustment Amounts;
(ii) the amount of such distribution as principal to the
Noteholders;
(iii) the amount of such distribution as interest to the
Noteholders, separately stating the portion thereof in respect of
overdue accrued interest;
(iv) the number and Pool Balance of the Home Loans as of the end
of the related Collection Period;
(v) the amount of any Credit Enhancement Draw Amount, if any,
for such Payment Date and the aggregate amount of prior draws
thereunder not yet reimbursed;
(vi) the number and aggregate Loan Balances of Home Loans (a) as
to which the Monthly Payment is Delinquent for 30-59 days, 60-89 days
and 90 or more days, respectively, (b) that are foreclosed, (c) that
have become REO, and (d) that have been finally liquidated due to being
180 days or more delinquent, in each case as of the end of the related
Collection Period; PROVIDED, HOWEVER, that such information will not be
provided on the statements relating to the first Payment Date;
(vii) the weighted average Loan Rate for the related Collection
Period;
(viii) the aggregate Liquidation Loss Amounts with respect to the
related Collection Period, the amount of any Liquidation Loss
Distribution Amounts with respect to the Notes, and the aggregate of
the Liquidation Loss Amounts from all Collection Periods to date
expressed as dollars and as a percentage of the aggregate Cut-off Date
Loan Balance;
(ix) the aggregate Excess Loss Amounts with respect to the
related Collection Period and the aggregate of the Excess Loss Amounts
from all Collection Periods to date;
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(x) the aggregate Special Hazard Losses and Fraud Losses with
respect to the related Collection Period and the aggregate of each of
such losses from all Collection Periods to date;
(xi) the Note Balance of the Notes and the Certificate Principal
Balance of the Certificates after giving effect to the distribution of
principal on such Payment Date;
(xii) the aggregate Servicing Fees for the related Collection
Period and the aggregate amount of Draws for the related Collection
Period;
(xiii) the Outstanding Reserve Amount, the Special Hazard
Amount, the Fraud Loss Amount and the Reserve Amount Target immediately
following such Payment Date;
(xiv) (a) the number and principal amount of release agreements
pursuant to Section 3.05(b)(iv) entered into during the calendar year
and since the Closing Date, stated separately, for the Home Loans and,
the aggregate outstanding principal amount of such release agreements
expressed as a percentage of the Pool Balance with information provided
separately with respect to all Unsecured Loans and (b) the number and
principal amount of Capitalization Workouts pursuant to Section
3.02(a)(v) entered into since the Closing Date; and
(xv) the aggregate amount recovered during the related Collection
Period consisting of all subsequent recoveries on any Home Loan that
was 180 days or more delinquent.
In the case of information furnished pursuant to clauses (ii) and (iii)
above, the amounts shall be expressed as an aggregate dollar amount per Note or
Certificate, as applicable, with a $1,000 denomination.
(b) In addition, with respect to each Payment Date, on the Business Day
following the related Determination Date, the Master Servicer shall forward to
the Credit Enhancer and the Rating Agencies the following information for each
Capitalization Workout entered into during the related Collection Period:
(i) the original Home Loan amount;
(ii) the Home Loan amount after the Capitalization Workout;
(iii) the original Monthly Payment amount;
(iv) the Monthly Payment amount after the Capitalization
Workout;
(v) the Capitalized Amount as defined in Section 3.02(a)(v)
herein;
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(vi) the Combined Loan-to-Value Ratio prior to the
Capitalization Workout;
(vii) the Combined Loan-to-Value Ratio after the Capitalization
Workout; and
(viii) if an appraisal was used in determining the Combined
Loan-to-Value Ratio referred to in (vii) above, the type and date of
appraisal.
The Master Servicer shall also forward to the Indenture Trustee any
other information reasonably requested by the Indenture Trustee necessary to
make distributions pursuant to Section 3.05 of the Indenture. Prior to the close
of business on the Business Day next succeeding each Determination Date, the
Master Servicer shall furnish a written statement to the Certificate Paying
Agent and the Indenture Trustee setting forth the aggregate amounts required to
be withdrawn from the Custodial Account and deposited into the Payment Account
on the Business Day preceding the related Payment Date pursuant to Section 3.03.
The determination by the Master Servicer of such amounts shall, in the absence
of obvious error, be presumptively deemed to be correct for all purposes
hereunder and the Owner Trustee and Indenture Trustee shall be protected in
relying upon the same without any independent check or verification. In
addition, upon the Issuer's written request, the Master Servicer shall promptly
furnish information reasonably requested by the Issuer that is reasonably
available to the Master Servicer to enable the Issuer to perform its federal and
state income tax reporting obligations.
The Master Servicer shall also forward to the Credit Enhancer and/or
its designees any additional information, including without limitation, loss and
delinquency information requested by the Credit Enhancer, with respect to the
Home Loans.
Section 4.02. TAX REPORTING. So long as 100% of the Certificates are
owned by the same person, then no separate federal and state income tax returns
and information returns or reports will be filed with respect to the Issuer, and
the Issuer will be treated as an entity disregarded from the 100%
Certificateholder.
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ARTICLE V
Payment Account
Section 5.01. PAYMENT ACCOUNT. The Indenture Trustee shall establish
and maintain a Payment Account titled "The Chase Manhattan Bank, as Indenture
Trustee, for the benefit of the Securityholders, the Certificate Paying Agent
and the Credit Enhancer pursuant to the Indenture, dated as of February 22,
2001, between Home Loan Trust 2001-HI1 and The Chase Manhattan Bank". The
Payment Account shall be an Eligible Account. On each Payment Date, amounts on
deposit in the Payment Account will be distributed by the Indenture Trustee in
accordance with Section 3.05 of the Indenture. The Indenture Trustee shall, upon
written request from the Master Servicer, invest or cause the institution
maintaining the Payment Account to invest the funds in the Payment Account in
Permitted Investments designated in the name of the Indenture Trustee, which
shall mature not later than the Business Day next preceding the Payment Date
next following the date of such investment (except that (i) any investment in
the institution with which the Payment Account is maintained may mature on such
Payment Date and (ii) any other investment may mature on such Payment Date if
the Indenture Trustee shall advance funds on such Payment Date to the Payment
Account in the amount payable on such investment on such Payment Date, pending
receipt thereof to the extent necessary to make distributions on the Securities)
and shall not be sold or disposed of prior to maturity. All income and gain
realized from any such investment shall be for the benefit of the Master
Servicer and shall be subject to its withdrawal or order from time to time. The
amount of any losses incurred in respect of any such investments shall be
deposited in the Payment Account by the Master Servicer out of its own funds
immediately as realized.
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ARTICLE VI
The Master Servicer
Section 6.01. LIABILITY OF THE MASTER SERVICER. The Master Servicer
shall be liable in accordance herewith only to the extent of the obligations
specifically imposed upon and undertaken by the Master Servicer herein.
Section 6.02. MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, THE MASTER SERVICER. Any corporation into which the Master
Servicer may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Master Servicer shall be a party, or any corporation succeeding to the business
of the Master Servicer, shall be the successor of the Master Servicer,
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
The Master Servicer may assign its rights and delegate its duties and
obligations under this Servicing Agreement; PROVIDED that the Person accepting
such assignment or delegation shall be a Person which is qualified to service
mortgage loans similar to those in the Trust Estate (meaning, mortgage loans
used for home improvement or debt consolidation), is reasonably satisfactory to
the Indenture Trustee (as pledgee of the Home Loans), the Issuer and the Credit
Enhancer, is willing to service the Home Loans and executes and delivers to the
Indenture Trustee and the Issuer an agreement, in form and substance reasonably
satisfactory to the Credit Enhancer, the Indenture Trustee and the Issuer, which
contains an assumption by such Person of the due and punctual performance and
observance of each covenant and condition to be performed or observed by the
Master Servicer under this Servicing Agreement; PROVIDED further that each
Rating Agency's rating of the Securities in effect immediately prior to such
assignment and delegation will not be qualified, reduced, or withdrawn as a
result of such assignment and delegation (as evidenced by a letter to such
effect from each Rating Agency), if determined without regard to the Credit
Enhancement Instrument; and provided further that the Owner Trustee receives an
Opinion of Counsel to the effect that such assignment or delegation shall not
cause the Owner Trust to be treated as a corporation for federal or state income
tax purposes.
Section 6.03. LIMITATION ON LIABILITY OF THE MASTER SERVICER AND
OTHERS. Neither the Master Servicer nor any of the directors or officers or
employees or agents of the Master Servicer shall be under any liability to the
Issuer, the Owner Trustee, the Indenture Trustee or the Securityholders for any
action taken or for refraining from the taking of any action in good faith
pursuant to this Servicing Agreement, PROVIDED, HOWEVER, that this provision
shall not protect the Master Servicer or any such Person against any liability
which would otherwise be imposed by reason of its willful misfeasance, bad faith
or gross negligence in the performance of its duties hereunder or by reason of
its reckless disregard of its obligations and duties hereunder. The Master
Servicer and any director or officer or employee or agent of the Master Servicer
may rely in good faith on any document of any kind PRIMA FACIE properly executed
and submitted by any Person respecting any
26
matters arising hereunder. The Master Servicer and any director or officer or
employee or agent of the Master Servicer shall be indemnified by the Issuer and
held harmless against any loss, liability or expense incurred in connection with
any legal action relating to this Servicing Agreement or the Securities,
including any amount paid to the Owner Trustee or the Indenture Trustee pursuant
to Section 6.06(b), other than any loss, liability or expense incurred by reason
of its willful misfeasance, bad faith or gross negligence in the performance of
its duties hereunder or by reason of its reckless disregard of its obligations
and duties hereunder. The Master Servicer shall not be under any obligation to
appear in, prosecute or defend any legal action which is not incidental to its
duties to service the Home Loans in accordance with this Servicing Agreement,
and which in its opinion may involve it in any expense or liability; PROVIDED,
HOWEVER, that the Master Servicer may in its sole discretion undertake any such
action which it may deem necessary or desirable in respect of this Servicing
Agreement, and the rights and duties of the parties hereto and the interests of
the Securityholders. In such event, the reasonable legal expenses and costs of
such action and any liability resulting therefrom shall be expenses, costs and
liabilities of the Issuer, and the Master Servicer shall be entitled to be
reimbursed therefor. The Master Servicer's right to indemnity or reimbursement
pursuant to this Section 6.03 shall survive any resignation or termination of
the Master Servicer pursuant to Section 6.04 or 7.01 with respect to any losses,
expenses, costs or liabilities arising prior to such resignation or termination
(or arising from events that occurred prior to such resignation or termination).
Section 6.04. MASTER SERVICER NOT TO RESIGN. Subject to the provisions
of Section 6.02, the Master Servicer shall not resign from the obligations and
duties hereby imposed on it except (i) upon determination that the performance
of its obligations or duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with any
other activities carried on by it or its subsidiaries or Affiliates, the other
activities of the Master Servicer so causing such a conflict being of a type and
nature carried on by the Master Servicer or its subsidiaries or Affiliates at
the date of this Servicing Agreement or (ii) upon satisfaction of the following
conditions: (a) the Master Servicer has proposed a successor servicer to the
Issuer and the Indenture Trustee in writing and such proposed successor servicer
is reasonably acceptable to the Issuer, the Indenture Trustee and the Credit
Enhancer; (b) each Rating Agency shall have delivered a letter to the Issuer,
the Credit Enhancer and the Indenture Trustee prior to the appointment of the
successor servicer stating that the proposed appointment of such successor
servicer as Master Servicer hereunder will not result in the reduction or
withdrawal of the then current rating of the Securities, if determined without
regard to the Credit Enhancement Instrument; and (c) such proposed successor
servicer is reasonably acceptable to the Credit Enhancer, as evidenced by a
letter to the Issuer and the Indenture Trustee; PROVIDED, HOWEVER, that no such
resignation by the Master Servicer shall become effective until such successor
servicer or, in the case of (i) above, the Indenture Trustee, as pledgee of the
Home Loans, shall have assumed the Master Servicer's responsibilities and
obligations hereunder or the Indenture Trustee, as pledgee of the Home Loans,
shall have designated a successor servicer in accordance with Section 7.02. Any
such resignation shall not relieve the Master Servicer of responsibility for any
of the obligations specified in Sections 7.01 and 7.02 as obligations that
survive the resignation or termination of the Master Servicer. Any such
27
determination permitting the resignation of the Master Servicer shall be
evidenced by an Opinion of Counsel to such effect delivered to the Indenture
Trustee and the Credit Enhancer.
Section 6.05. DELEGATION OF DUTIES. In the ordinary course of business,
the Master Servicer at any time may delegate any of its duties hereunder to any
Person, including any of its Affiliates, who agrees to conduct such duties in
accordance with standards comparable to those with which the Master Servicer
complies pursuant to Section 3.01. Such delegation shall not relieve the Master
Servicer of its liabilities and responsibilities with respect to such duties and
shall not constitute a resignation within the meaning of Section 6.04.
Section 6.06. MASTER SERVICER TO PAY INDENTURE TRUSTEE'S AND OWNER
TRUSTEE'S FEES AND EXPENSES; INDEMNIFICATION. (a) The Master Servicer covenants
and agrees to pay to the Owner Trustee, the Indenture Trustee and any co-trustee
of the Indenture Trustee or the Owner Trustee from time to time, and the Owner
Trustee, the Indenture Trustee and any such co-trustee shall be entitled to,
reasonable compensation (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) for all services
rendered by each of them in the execution of the trusts created under the Trust
Agreement and the Indenture and in the exercise and performance of any of the
powers and duties under the Trust Agreement or the Indenture, as the case may
be, of the Owner Trustee, the Indenture Trustee and any co-trustee, and the
Master Servicer will pay or reimburse the Indenture Trustee and any co-trustee
upon request for all reasonable expenses, disbursements and advances incurred or
made by the Indenture Trustee or any co-trustee in accordance with any of the
provisions of this Servicing Agreement except any such expense, disbursement or
advance as may arise from its negligence, wilful misfeasance or bad faith.
(b) The Master Servicer agrees to indemnify the Indenture Trustee and
the Owner Trustee for, and to hold the Indenture Trustee and the Owner Trustee,
as the case may be, harmless against, any loss, liability or expense incurred
without negligence, bad faith or willful misconduct on the part of the Indenture
Trustee or the Owner Trustee, as the case may be, arising out of, or in
connection with, the acceptance and administration of the Issuer and the assets
thereof, including the costs and expenses (including reasonable legal fees and
expenses) of defending the Indenture Trustee or the Owner Trustee, as the case
may be, against any claim in connection with the exercise or performance of any
of its powers or duties under any Basic Document (including, without limitation,
any claim against the Indenture Trustee or the Owner Trustee alleging a
violation of the Homeownership and Equity Protection Act of 1994, as amended),
provided that:
(i) with respect to any such claim, the Indenture
Trustee or Owner Trustee, as the case may be, shall have given the
Master Servicer written notice thereof promptly after the Indenture
Trustee or Owner Trustee, as the case may be, shall have actual
knowledge thereof;
(ii) while maintaining control over its own defense, the
Issuer, the Indenture Trustee or Owner Trustee, as the case may be,
shall cooperate and consult fully with the Master Servicer in preparing
such defense; and
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(iii) notwithstanding anything in this Servicing
Agreement to the contrary, the Master Servicer shall not be liable for
settlement of any claim by the Indenture Trustee or the Owner Trustee,
as the case may be, entered into without the prior consent of the
Master Servicer.
No termination of this Servicing Agreement shall affect the obligations created
by this Section 6.06 of the Master Servicer to indemnify the Indenture Trustee
and the Owner Trustee under the conditions and to the extent set forth herein.
Notwithstanding the foregoing, the indemnification provided by the
Master Servicer in this Section 6.06(b) shall not pertain to any loss, liability
or expense of the Indenture Trustee or the Owner Trustee, including the costs
and expenses of defending itself against any claim, incurred in connection with
any actions taken by the Indenture Trustee or the Owner Trustee at the direction
of the Noteholders or Certificateholders, as the case may be, pursuant to the
terms of this Servicing Agreement.
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ARTICLE VII
Default
Section 7.01. SERVICING DEFAULT. If any one of the following
events ("Servicing Default") shall occur and be continuing:
(i) Any failure by the Master Servicer to deposit in
the Custodial Account or Payment Account any deposit required to be
made under the terms of this Servicing Agreement which continues
unremedied for a period of five Business Days after the date upon which
written notice of such failure shall have been given to the Master
Servicer by the Issuer or the Indenture Trustee, or to the Master
Servicer, the Issuer and the Indenture Trustee by the Credit Enhancer;
or
(ii) Failure on the part of the Master Servicer duly to
observe or perform in any material respect any other covenants or
agreements of the Master Servicer set forth in the Securities or in
this Servicing Agreement, which failure, in each case, materially and
adversely affects the interests of Securityholders or the Credit
Enhancer and which continues unremedied for a period of 45 days after
the date on which written notice of such failure, requiring the same to
be remedied, and stating that such notice is a "Notice of Default"
hereunder, shall have been given to the Master Servicer by the Issuer
or the Indenture Trustee, or to the Master Servicer, the Issuer and the
Indenture Trustee by the Credit Enhancer; or
(iii) The entry against the Master Servicer of a decree
or order by a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a trustee,
conservator, receiver or liquidator in any insolvency, conservatorship,
receivership, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or for the winding up or
liquidation of its affairs, and the continuance of any such decree or
order undischarged or unstayed and in effect for a period of 60
consecutive days; or
(iv) The Master Servicer shall voluntarily go into
liquidation, consent to the appointment of a conservator, receiver,
liquidator or similar person in any insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings of or
relating to the Master Servicer or of or relating to all or
substantially all of its property, or a decree or order of a court,
agency or supervisory authority having jurisdiction in the premises for
the appointment of a conservator, receiver, liquidator or similar
person in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Master
Servicer and such decree or order shall have remained in force
undischarged, unbonded or unstayed for a period of 60 days; or the
Master Servicer shall admit in writing its inability to pay its debts
generally as they become due, file a petition to take advantage of any
applicable
30
insolvency or reorganization statute, make an assignment for the
benefit of its creditors or voluntarily suspend payment of its
obligations.
Then, and in every such case, so long as a Servicing Default shall not have been
remedied by the Master Servicer, either the Issuer or the Indenture Trustee,
with the consent of the Credit Enhancer, or the Credit Enhancer, by notice then
given in writing to the Master Servicer (and to the Issuer and the Indenture
Trustee if given by the Credit Enhancer) may terminate all of the rights and
obligations of the Master Servicer as servicer under this Servicing Agreement
other than its right to receive servicing compensation and expenses for
servicing the Home Loans hereunder during any period prior to the date of such
termination and the Issuer or the Indenture Trustee, with the consent of the
Credit Enhancer, or the Credit Enhancer may exercise any and all other remedies
available at law or equity. Any such notice to the Master Servicer shall also be
given to each Rating Agency, the Credit Enhancer and the Issuer. On or after the
receipt by the Master Servicer of such written notice, all authority and power
of the Master Servicer under this Servicing Agreement, whether with respect to
the Securities or the Home Loans or otherwise, shall pass to and be vested in
the Indenture Trustee, pursuant to and under this Section 7.01; and, without
limitation, the Indenture Trustee is hereby authorized and empowered to execute
and deliver, on behalf of the Master Servicer, as attorney-in-fact or otherwise,
any and all documents and other instruments, and to do or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice of
termination, whether to complete the transfer and endorsement of each Home Loan
and related documents, or otherwise. The Master Servicer agrees to cooperate
with the Indenture Trustee in effecting the termination of the responsibilities
and rights of the Master Servicer hereunder, including, without limitation, the
transfer to the Indenture Trustee for the administration by it of all cash
amounts relating to the Home Loans that shall at the time be held by the Master
Servicer and to be deposited by it in the Custodial Account, or that have been
deposited by the Master Servicer in the Custodial Account or thereafter received
by the Master Servicer with respect to the Home Loans. All reasonable costs and
expenses (including, but not limited to, attorneys' fees) incurred in connection
with amending this Servicing Agreement to reflect such succession as Master
Servicer pursuant to this Section 7.01 shall be paid by the predecessor Master
Servicer (or if the predecessor Master Servicer is the Indenture Trustee, the
initial Master Servicer) upon presentation of reasonable documentation of such
costs and expenses.
Notwithstanding any termination of the activities of the Master
Servicer hereunder, the Master Servicer shall be entitled to receive, out of any
late collection of a payment on a Home Loan which was due prior to the notice
terminating the Master Servicer's rights and obligations hereunder and received
after such notice, that portion to which the Master Servicer would have been
entitled pursuant to Sections 3.03 and 3.09 as well as its Master Servicing Fee
in respect thereof, and any other amounts payable to the Master Servicer
hereunder the entitlement to which arose prior to the termination of its
activities hereunder.
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Notwithstanding the foregoing, a delay in or failure of performance
under Section 7.01(i) or under Section 7.01(ii) after the applicable grace
periods specified in such Sections, shall not constitute a Servicing Default if
such delay or failure could not be prevented by the exercise of reasonable
diligence by the Master Servicer and such delay or failure was caused by an act
of God or the public enemy, acts of declared or undeclared war, public disorder,
rebellion or sabotage, epidemics, landslides, lightning, fire, hurricanes,
earthquakes, floods or similar causes. The preceding sentence shall not relieve
the Master Servicer from using reasonable efforts to perform its respective
obligations in a timely manner in accordance with the terms of this Servicing
Agreement and the Master Servicer shall provide the Indenture Trustee, the
Credit Enhancer and the Securityholders with notice of such failure or delay by
it, together with a description of its efforts to so perform its obligations.
The Master Servicer shall immediately notify the Indenture Trustee, the Credit
Enhancer and the Owner Trustee in writing of any Servicing Default.
Section 7.02. INDENTURE TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR. (a)
On and after the time the Master Servicer receives a notice of termination
pursuant to Section 7.01 or sends a notice pursuant to Section 6.04, the
Indenture Trustee shall be the successor in all respects to the Master Servicer
in its capacity as servicer under this Servicing Agreement and the transactions
set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof. Nothing in this Servicing Agreement
or in the Trust Agreement shall be construed to permit or require the Indenture
Trustee to (i) succeed to the responsibilities, duties and liabilities of the
initial Master Servicer in its capacity as Seller under the Home Loan Purchase
Agreement, (ii) be responsible or accountable for any act or omission of the
Master Servicer prior to the issuance of a notice of termination hereunder,
(iii) require or obligate the Indenture Trustee, in its capacity as successor
Master Servicer, to purchase, repurchase or substitute any Home Loan, (iv) fund
any losses on any Permitted Investment directed by any other Master Servicer or
(v) be responsible for the representations and warranties of the Master
Servicer. As compensation therefor, the Indenture Trustee shall be entitled to
such compensation as the Master Servicer would have been entitled to hereunder
if no such notice of termination had been given. Notwithstanding the above, (i)
if the Indenture Trustee is unwilling to act as successor Master Servicer, or
(ii) if the Indenture Trustee is legally unable so to act, the Indenture Trustee
may (in the situation described in clause (i)) or shall (in the situation
described in clause (ii)) appoint or petition a court of competent jurisdiction
to appoint any established housing and home finance institution, bank or other
mortgage loan or home equity loan servicer having a net worth of not less than
$10,000,000 as the successor to the Master Servicer hereunder in the assumption
of all or any part of the responsibilities, duties or liabilities of the Master
Servicer hereunder; PROVIDED that any such successor Master Servicer shall be
acceptable to the Credit Enhancer, as evidenced by the Credit Enhancer's prior
written consent which consent shall not be unreasonably withheld and provided
further that the appointment of any such successor Master Servicer will not
result in the qualification, reduction or withdrawal of the ratings assigned to
the Securities by the Rating Agencies, if determined without regard to the
Credit Enhancement Instrument. Pending appointment of a successor to the Master
Servicer hereunder, unless the Indenture Trustee is prohibited by law from so
acting, the Indenture Trustee shall act in such capacity as hereinabove
provided. In connection with such appointment and assumption, the successor
shall
32
be entitled to receive compensation out of payments on Home Loans in an amount
equal to the compensation which the Master Servicer would otherwise have
received pursuant to Section 3.09 (or such lesser compensation as the Indenture
Trustee and such successor shall agree). The appointment of a successor Master
Servicer shall not affect any liability of the predecessor Master Servicer which
may have arisen under this Servicing Agreement prior to its termination as
Master Servicer (including, without limitation, the obligation to purchase Home
Loans pursuant to Section 3.01, to pay any deductible under an insurance policy
pursuant to Section 3.04 or to indemnify the Indenture Trustee pursuant to
Section 6.06), nor shall any successor Master Servicer be liable for any acts or
omissions of the predecessor Master Servicer or for any breach by such Master
Servicer of any of its representations or warranties contained herein or in any
related document or agreement. The Indenture Trustee and such successor shall
take such action, consistent with this Servicing Agreement, as shall be
necessary to effectuate any such succession.
(b) Any successor, including the Indenture Trustee, to the Master
Servicer as servicer shall during the term of its service as servicer (i)
continue to service and administer the Home Loans for the benefit of the
Securityholders, (ii) maintain in force a policy or policies of insurance
covering errors and omissions in the performance of its obligations as Master
Servicer hereunder and a fidelity bond in respect of its officers, employees and
agents to the same extent as the Master Servicer is so required pursuant to
Section 3.13 and (iii) be bound by the terms of the Insurance Agreement.
(c) Any successor Master Servicer, including the Indenture Trustee,
shall not be deemed in default or to have breached its duties hereunder if the
predecessor Master Servicer shall fail to deliver any required deposit to the
Custodial Account or otherwise cooperate with any required servicing transfer or
succession hereunder.
Section 7.03. NOTIFICATION TO SECURITYHOLDERS. Upon any termination of
or appointment of a successor to the Master Servicer pursuant to this Article
VII or Section 6.04, the Indenture Trustee shall give prompt written notice
thereof to the Securityholders, the Credit Enhancer, the Issuer and each Rating
Agency.
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ARTICLE VIII
Miscellaneous Provisions
Section 8.01. AMENDMENT. This Servicing Agreement may be amended from
time to time by the parties hereto, provided that any amendment be accompanied
by a letter from the Rating Agencies that the amendment will not result in the
downgrading or withdrawal of the rating then assigned to the Securities, if
determined without regard to the Credit Enhancement Instrument, and the consent
of the Credit Enhancer and the Indenture Trustee. Promptly after the execution
by the Master Servicer, the Issuer and the Indenture Trustee of any amendment of
this Servicing Agreement pursuant to this Section 8.01, the Indenture Trustee
shall provide the Custodian with written copies thereof. Any failure of the
Indenture Trustee to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amendment.
SECTION 8.02. GOVERNING LAW. THIS SERVICING AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
Section 8.03. NOTICES. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by certified mail, return receipt requested,
to (a) in the case of the Master Servicer, 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxxxx 00000-0000, Attention: Addition Director - Bond
Administration, (b) in the case of the Credit Enhancer, Ambac Assurance
Corporation, Xxx Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Consumer Asset-Backed Securities Group, (c) in the case of Xxxxx'x,
Home Mortgage Loan Monitoring Group, 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, (d) in the case of Standard & Poor's, 00 Xxxxx Xxxxxx - 41st Floor,
New York, New York 10041, Attention: Residential Mortgage Surveillance Group,
(e) in the case of the Owner Trustee, Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Administration, (f) in the case of the Issuer, to Home Loan
Trust 2001-HI1, c/o Owner Trustee, Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention:
Corporate Trust Administration, (g) in the case of the Indenture Trustee, The
Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX, 00000,
Attention: Capital Markets Fiduciary Services and (h) in the case of the
Underwriter, at Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000; or, as to each party, at such other address as shall be designated by
such party in a written notice to each other party. Any notice required or
permitted to be mailed to a Securityholder shall be given by first class mail,
postage prepaid, at the address of such Securityholder as shown in the Register.
Any notice so mailed within the time prescribed in this Servicing Agreement
shall be conclusively presumed to have been duly given, whether or not the
Securityholder receives such notice. Any notice or other document required to be
delivered or mailed by the Indenture Trustee to any Rating Agency shall be given
on a reasonable efforts basis and only as a matter of courtesy
34
and accommodation and the Indenture Trustee shall have no liability for failure
to delivery such notice or document to any Rating Agency.
Section 8.04. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Servicing Agreement shall be
for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Servicing Agreement and shall in no way
affect the validity or enforceability of the other provisions of this Servicing
Agreement or of the Securities or the rights of the Securityholders thereof.
Section 8.05. THIRD-PARTY BENEFICIARIES. This Servicing Agreement will
inure to the benefit of and be binding upon the parties hereto, the
Securityholders, the Credit Enhancer, the Owner Trustee and their respective
successors and permitted assigns. Except as otherwise provided in this Servicing
Agreement, no other Person will have any right or obligation hereunder.
Section 8.06. COUNTERPARTS. This instrument may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.
Section 8.07. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 8.08. TERMINATION UPON PURCHASE BY THE MASTER SERVICER OR
LIQUIDATION OF ALL HOME LOANS; PARTIAL REDEMPTION. (a) The respective
obligations and responsibilities of the Master Servicer, the Issuer and the
Indenture Trustee created hereby shall terminate upon the last action required
to be taken by the Issuer pursuant to the Trust Agreement and by the Indenture
Trustee pursuant to the Indenture following the earlier of:
(i) the date on or before which the Indenture or Trust
Agreement is terminated, or
(ii) the purchase by the Master Servicer from the Issuer of
all Home Loans and all property acquired in respect of any Home Loan at
a price equal to the Termination Price.
The right of the Master Servicer to purchase the assets of the Issuer pursuant
to clause (ii) above on any Payment Date is conditioned upon the Pool Balance
(after applying payments received in the related Collection Period) as of such
Payment Date being less than ten percent of the aggregate of the Cut-off Date
Loan Balances of the Home Loans. If such right is exercised by the Master
Servicer, the Master Servicer shall deposit the Termination Price calculated
pursuant to clause (ii) above with the Indenture Trustee pursuant to Section
4.10 of the Indenture and, upon the receipt of such deposit, the Indenture
Trustee or Custodian shall release to the Master Servicer, the files pertaining
to the Home Loans being purchased.
35
(b) Subject to the provisions of clause (c) below, the Master Servicer
has the right to purchase a portion of the assets of the Issuer upon the Pool
Balance (after applying payments received in the related Collection Period) as
of such date being less than ten percent of the aggregate of the Cut-off Date
Loan Balances of the Home Loans at a price equal to the Termination Price. If
such right is exercised by the Master Servicer, the Master Servicer shall
deposit the Termination Price with the Indenture Trustee pursuant to Section
5.02 of the Indenture and, upon the receipt of such deposit, the Indenture
Trustee or Custodian shall release to the Master Servicer, the files pertaining
to the Home Loans being purchased.
(c) With respect to any purchase of a portion of the Home Loans by the
Master Servicer pursuant to subsection (b) above or this subsection (c), the
following conditions must be satisfied: (i) the Master Servicer shall have
delivered to the Indenture Trustee and the Credit Enhancer a loan schedule
containing a list of all Home Loans remaining in the Trust after such removal;
(ii) the Master Servicer shall represent and warrant that no selection
procedures adverse to the interests of the Securityholders or the Credit
Enhancer were used by the Master Servicer in selecting such Home Loans; and
(iii) each Rating Agency shall have notified the Master Servicer that such
retransfer would not result in a reduction or withdrawal of the ratings of the
Securities, if determined without regard to the Credit Enhancement Instrument.
(d) The Master Servicer, at its expense, shall prepare and deliver to
the Indenture Trustee for execution, at the time the Home Loans are to be
released to the Master Servicer, appropriate documents assigning each such Home
Loan from the Indenture Trustee or the Issuer to the Master Servicer or the
appropriate party.
(e) The Master Servicer shall give the Indenture Trustee not less than
seven Business Days' prior written notice of the Payment Date on which the
Master Servicer anticipates that the final distribution will be made to
Noteholders. Notice of any termination, specifying the anticipated Final
Scheduled Payment Date or other Payment Date (which shall be a date that would
otherwise be a Payment Date) upon which the Noteholders may surrender their
Notes to the Indenture Trustee (if so required by the terms hereof) for payment
of the final distribution and cancellation, shall be given promptly by the
Master Servicer to the Indenture Trustee specifying:
(i) the anticipated Final Scheduled Payment Date or other
Payment Date upon which final payment of the Notes is anticipated to be
made upon presentation and surrender of Notes at the office or agency
of the Indenture Trustee therein designated; and
(ii) the amount of any such final payment, if known.
Section 8.09. CERTAIN MATTERS AFFECTING THE INDENTURE TRUSTEE. For all
purposes of this Servicing Agreement, in the performance of any of its duties or
in the exercise of any of its powers hereunder, the Indenture Trustee shall be
subject to and entitled to the benefits of Article VI of the Indenture.
36
Section 8.10. OWNER TRUSTEE NOT LIABLE FOR RELATED DOCUMENTS. The
recitals contained herein shall be taken as the statements of the Depositor, and
the Owner Trustee assumes no responsibility for the correctness thereof. The
Owner Trustee makes no representations as to the validity or sufficiency of this
Servicing Agreement, of any Basic Document or of the Certificates (other than
the signatures of the Owner Trustee on the Certificates) or the Notes, or of any
Related Documents. The Owner Trustee shall at no time have any responsibility or
liability with respect to the sufficiency of the Owner Trust Estate or its
ability to generate the payments to be distributed to Certificateholders under
the Trust Agreement or the Noteholders under the Indenture, including, the
compliance by the Depositor or the Seller with any warranty or representation
made under any Basic Document or in any related document or the accuracy of any
such warranty or representation, or any action of the Certificate Paying Agent,
the Certificate Registrar or the Indenture Trustee taken in the name of the
Owner Trustee.
37
IN WITNESS WHEREOF, the Master Servicer, the Indenture Trustee and the
Issuer have caused this Servicing Agreement to be duly executed by their
respective officers or representatives all as of the day and year first above
written.
RESIDENTIAL FUNDING CORPORATION,
as Master Servicer
By: /s/ Xxxxx Xxx Xxx
-------------------------------------
Name: Xxxxx Xxx Xxx
Title: Director
HOME LOAN TRUST 2001-HI1
By: Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as Indenture
Trustee
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx XxXxxxxxx
Title: Trust Officer
IN WITNESS WHEREOF, the Master Servicer, the Indenture Trustee and the
Issuer have caused this Servicing Agreement to be duly executed by their
respective officers or representatives all as of the day and year first above
written.
RESIDENTIAL FUNDING CORPORATION,
as Master Servicer
By: /s/ Xxxxx Xxx Xxx
-------------------------------------
Name: Xxxxx Xxx Xxx
Title: Director
HOME LOAN TRUST 2001-HI1
By: Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK, as Indenture
Trustee
By: /s/ Xxxx Xxxxxxxxx
-------------------------------------
Name: Xxxx XxXxxxxxx
Title: Trust Officer
EXHIBIT A
HOME LOAN SCHEDULE
TO BE PROVIDED UPON REQUEST
EXHIBIT B
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PREMISES:
That The Chase Manhattan Bank, as Indenture Trustee (the "Trustee"), under the
Indenture (the "Indenture") among ________________________________________ and
the Indenture Trustee, a national banking association organized and existing
under the laws of the State of New York, and having its principal office located
at 000 Xxxx 00xx Xxxxxx, in the City of New York in the State of New York, hath
made, constituted and appointed, and does by these presents make, constitute and
appoint Residential Funding Corporation, a corporation organized and existing
under the laws of the State of Delaware, its true and lawful Attorney-in-Fact,
with full power and authority to sign, execute, acknowledge, deliver, file for
record, and record any instrument on its behalf and to perform such other act or
acts as may be customarily and reasonably necessary and appropriate to
effectuate the following enumerated transactions in respect of any of the
mortgages or deeds of trust (the "Mortgages" and the "Deeds of Trust",
respectively) creating a trust or second lien or an estate in fee simple
interest in real property securing a Home Loan and promissory notes secured
thereby (the "Mortgage Notes") for which the undersigned is acting as Indenture
Trustee for various Securityholders (whether the undersigned is named therein as
mortgagee or beneficiary or has become mortgagee by virtue of Endorsement of the
Mortgage Note secured by any such Mortgage or Deed of Trust) and for which
Residential Funding Corporation is acting as master servicer pursuant to a
Servicing Agreement, dated as of February 22, 2001 (the "Servicing Agreement").
This appointment shall apply only to transactions which the Trustee is
authorized to enter into under the Indenture, but in no event shall apply to any
transactions other than the following enumerated transactions only:
1. The modification or re-recording of a Mortgage or Deed of Trust, where
said modification or re-recording is for the purpose of correcting the
Mortgage or Deed of Trust to conform same to the original intent of the
parties thereto or to correct title errors discovered after such title
insurance was issued and said modification or re-recording, in either
instance, does not adversely affect the lien of the Mortgage or Deed of
Trust as insured.
2. The subordination of the lien of a Mortgage or Deed of Trust to an
easement in favor of a public utility company or a government agency or
unit with powers of eminent domain; this section shall include, without
limitation, the execution of partial satisfactions/releases, partial
reconveyances or the execution of requests to trustees to accomplish
same.
3. With respect to a Mortgage or Deed of Trust, the foreclosure, the
taking of a deed in lieu of foreclosure, or the completion of judicial
or non-judicial foreclosure or termination, cancellation or rescission
of any such foreclosure, including, without limitation, any and all of
the following acts:
a. The substitution of trustee(s) serving under a Deed of Trust, in
accordance with state law and the Deed of Trust;
b. Statements of breach or non-performance;
c. Notices of default;
d. Cancellations/rescissions of notices of default and/or notices of
sale;
e. The taking of a deed in lieu of foreclosure; and
f. Such other documents and actions as may be necessary under the
terms of the Mortgage, Deed of Trust or state law to
expeditiously complete said transactions.
4. The conveyance of the properties to the mortgage insurer, or the
closing of the title to the property to be acquired as real estate
owned, or conveyance of title to real estate owned.
5. The completion of loan assumption agreements.
6. The full satisfaction/release of a Mortgage or Deed of Trust or full
reconveyance upon payment and discharge of all sums secured thereby,
including, without limitation, cancellation of the related Mortgage
Note.
7. The assignment of any Mortgage or Deed of Trust and the related
Mortgage Note, in connection with the repurchase of the Home Loan
secured and evidenced thereby pursuant to the requirements of a
Residential Funding Corporation Seller Contract.
8. The full assignment of a Mortgage or Deed of Trust upon payment and
discharge of all sums secured thereby in conjunction with the
refinancing thereof, including, without limitation, the endorsement of
the related Mortgage Note.
9. The modification or re-recording of a Mortgage or Deed of Trust, where
said modification or re-recording is for the purpose of any
modification pursuant to Section 3.01 of the Servicing Agreement.
10. The subordination of the lien of a Mortgage or Deed of Trust, where
said subordination is in connection with any modification pursuant to
Section 3.01 of the Servicing Agreement, and the execution of partial
satisfactions/releases in connection with such same Section 3.01.
The undersigned gives said Attorney-in-Fact full power and authority to execute
such instruments and to do and perform all and every act and thing necessary and
proper to carry into effect the power or powers granted by or under this Limited
Power of Attorney as fully as the undersigned might or could do, and hereby does
ratify and confirm to all that said Attorney-in-Fact shall lawfully do or cause
to be done by authority hereof.
Third parties without actual notice may rely upon the exercise of the power
granted under this Limited Power of Attorney; and may be satisfied that this
Limited Power of Attorney shall continue in full force and effect has not been
revoked unless an instrument of revocation has been made in writing by the
undersigned.
THE CHASE
MANHATTAN BANK,
not in its
individual
capacity, but
solely as
Indenture Trustee
under the
Agreements and the
Indentures
Name: Name:
-----------------------------------------------
Title: Title:
----------------------------------------------
STATE OF )
SS.
COUNTY OF )
On this __ day of ____________, 2001, before me the undersigned, Notary
Public of said State, personally appeared _______________________________
personally known to me to be duly authorized officers of The Chase Manhattan
Bank that executed the within instrument and personally known to me to be the
persons who executed the within instrument on behalf of The Chase Manhattan Bank
therein named, and acknowledged to me such The Chase Manhattan Bank executed the
within instrument pursuant to its by-laws.
WITNESS my hand
and official seal.
Notary Public in and for the
State of
After recording, please mail to:
Attn:
EXHIBIT C
FORM OF REQUEST FOR RELEASE
DATE:
TO:
RE: REQUEST FOR RELEASE OF DOCUMENTS
In connection with your administration of the Home Loans, we request the release
of the Mortgage File described below.
Servicing Agreement Dated:
Series #:
Account #:
Pool #:
Loan #:
Borrower Name(s):
Reason for Document Request: (circle one) Home Loan Prepaid in Full
Home Loan Repurchased
"We hereby certify that all amounts received or to be received in connection
with such payments which are required to be deposited have been or will be so
deposited as provided in the Servicing Agreement."
-------------------------------------
Residential Funding Corporation
Authorized Signature
******************************************************************
TO CUSTODIAN/INDENTURE TRUSTEE: Please acknowledge this request, and check off
documents being enclosed with a copy of this form. You should retain this form
for your files in accordance with the terms of the Servicing Agreement.
Enclosed Documents: [ ] Promissory Note
[ ] Mortgage or Deed of Trust
[ ] Assignment(s) of Mortgage or
Deed of Trust
[ ] Title Insurance Policy
[ ] Other: --------------------------
Name
Title
Date
