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RESIDENTIAL FUNDING COMPANY, LLC,
as Master Servicer
HOME LOAN TRUST 2006-HI5,
as Issuer
and
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
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SERVICING AGREEMENT
Dated as of December 28, 2006
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Home Loans
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS.................................................... 1
Section 1.01. Definitions........................................... 1
Section 1.02. Other Definitional Provisions......................... 1
Section 1.03. Interest Calculations................................. 2
ARTICLE II REPRESENTATIONS AND WARRANTIES................................ 2
Section 2.01. Representations and Warranties Regarding the Master
Servicer.............................................. 2
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................... 5
Section 3.01. The Master Servicer................................... 5
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 15
Section 3.08. Issuer and Indenture Trustee to Cooperate............. 17
Section 3.09. Servicing Compensation; Payment of Certain Expenses by
Master Servicer....................................... 18
Section 3.10. Annual Statement as to Compliance..................... 19
Section 3.11. Annual Independent Public Accountants' Servicing
Report................................................ 19
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........... 20
Section 3.16. Limited Home Loan Repurchase Right.................... 20
ARTICLE IV SERVICING CERTIFICATE......................................... 21
Section 4.01. Statements to Securityholders......................... 21
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TABLE OF CONTENTS
(continued)
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Section 4.02. Tax Reporting......................................... 24
Section 4.03. Calculation of Adjusted Issue Price................... 24
Section 4.04. Exchange Act Reporting................................ 24
ARTICLE V PAYMENT ACCOUNT................................................ 26
Section 5.01. Payment Account....................................... 26
ARTICLE VI THE MASTER SERVICER........................................... 26
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................................................ 27
Section 6.04. Master Servicer Not to Resign......................... 28
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.......... 29
ARTICLE VII DEFAULT...................................................... 30
Section 7.01. Servicing Default..................................... 30
Section 7.02. Indenture Trustee to Act; Appointment of Successor.... 32
Section 7.03. Notification to Securityholders....................... 34
Section 7.04. Servicing Trigger; Removal of Master Servicer......... 34
ARTICLE VIII MISCELLANEOUS PROVISIONS.................................... 35
Section 8.01. Amendment............................................. 35
Section 8.02. GOVERNING LAW......................................... 35
Section 8.03. Notices............................................... 35
Section 8.04. Severability of Provisions............................ 36
Section 8.05. Third-Party Beneficiaries............................. 36
Section 8.06. Counterparts.......................................... 36
Section 8.07. Effect of Headings and Table of Contents.............. 36
Section 8.08. Termination Upon Purchase by the Master Servicer or
Liquidation of All Home Loans; Partial Redemption..... 36
Section 8.09. Certain Matters Affecting the Indenture Trustee....... 37
Section 8.10. Owner Trustee Not Liable for Related Documents........ 37
ARTICLE IX COMPLIANCE WITH REGULATION AB................................. 38
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TABLE OF CONTENTS
(continued)
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Section 9.01. Intent of the Parties; Reasonableness................. 38
Section 9.02. Additional Representations and Warranties of the
Indenture Trustee..................................... 38
Section 9.03. Information to Be Provided by the Indenture Trustee... 39
Section 9.04. Report on Assessment of Compliance and Attestation.... 39
Section 9.05. Indemnification; Remedies............................. 40
Exhibit A Home Loans Schedule
Exhibit B Power of Attorney
Exhibit C Form of Request for Release
Exhibit D Form of Form 10-K Certificate
Exhibit E Form of Back-Up Certificate to Form 10-K Certificate
Exhibit F Servicing Criteria to be Addressed in Assessment of Compliance
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This is a Servicing Agreement, dated as of December 28, 2006 (the
"Servicing Agreement"), among Residential Funding Company, LLC (the "Master
Servicer"), the Home Loan Trust 2006-HI5 (the "Issuer") and U.S. Bank National
Association (the "Indenture Trustee").
WITNESSETH THAT:
WHEREAS, pursuant to the terms of the Home Loan Purchase Agreement,
Residential Funding Company, LLC (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 December 28, 2006 (the "Indenture"), between Home Loan Trust
2006-HI5, as issuer and U.S. Bank National Association, 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 (other than the Class A-1 Notes) shall be made on the basis of a
30-day month and a year assumed to consist of 360 days. Calculation of interest
on the Class A-1 Notes shall be made on the basis of the actual number of days
in the applicable Interest Accrual Period 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 ▇▇▇▇▇ with one-half of one
▇▇▇▇▇ being rounded up.
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, and the Credit Enhancer, as
of the Cut-off Date:
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(i) The Master Servicer is a limited liability company duly organized,
validly existing and in good standing under the laws governing its creation
and existence and is or will be in compliance with the laws of each state
in which any Mortgaged Property is located to the extent necessary to
ensure the enforceability of each Mortgage Loan in accordance with the
terms of this Agreement;
(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
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 formation or limited liability company
agreement 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;
(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 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; and
(vi) The Master Servicer is a member of MERS in good standing, and
will comply in all material respects with the rules and procedures of MERS
in connection with the servicing of the Home Loans that are registered with
MERS.
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, and the Credit Enhancer, as of
the Cut-off Date:
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(i) The Issuer is a statutory 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 require the authorization, consent or approval of, the giving of
notice to, the filing or registration with, or the taking of any other
action with respect to, any governmental authority or agency regulating the
activities of statutory trusts. 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 or the Credit Enhancer, 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 Issuer, the Credit Enhancer 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(c) of the Home Loan Purchase Agreement; provided that the Seller
shall, subject to compliance 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(c) 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
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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. If the Master Servicer is
Residential Funding Company, LLC, then the Indenture Trustee may, and at the
direction of the Credit Enhancer, shall, give the notification and require the
purchase or substitution provided for in the first preceding paragraph in the
event of such a breach of a representation or warranty made by Residential
Funding Company, LLC in the Home Loan Purchase Agreement.
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, as pledgee of the Home
Loans, and the Credit Enhancer for the performance of its duties and obligations
hereunder in accordance with the terms hereof, without diminution of such
obligation or liability by virtue of such Subservicing agreements or
arrangements or by virtue of indemnification from the Subservicer and to the
same extent and under the same terms and conditions as if the Master Servicer
alone were servicing and administering the Home Loans. 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
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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 is hereby directed to deliver to the Master Servicer a limited
power of attorney substantially in the form of Exhibit B hereto. The Master
Servicer further is authorized and empowered by the Issuer and the Indenture
Trustee, on behalf of the Noteholders, the Credit Enhancer and the Indenture
Trustee, in its own name or in the name of the Subservicer, when the Master
Servicer or the Subservicer, as the case may be, believes it is appropriate in
its best judgment to register any Home Loan on the MERS(R) System, or cause the
removal from the registration of any Home Loan on the MERS(R) System, to execute
and deliver, on behalf of the Indenture Trustee and the Noteholders or any of
them, any and all instruments of assignment and other comparable instruments
with respect to such assignment or re-recording of a Mortgage in the name of
MERS, solely as nominee for the Indenture Trustee and its successors and
assigns. Any expenses incurred in connection with the actions described in the
preceding sentence shall be borne by the Master Servicer in accordance with
Section 3.09, with no right of reimbursement; provided, that if, as a result of
MERS discontinuing or becoming unable to continue operations in connection with
the MERS(R) System, it becomes necessary to remove any Home Loan from
registration on the MERS(R) System and to arrange for the assignment of the
related Mortgages to the Indenture Trustee, then any related expenses shall be
reimbursable to the Master Servicer as set forth in Section 3.03(ii).
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 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 (so long as no Credit
Enhancer Default has occurred and is continuing), 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
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(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 Servicing 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 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
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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. The
Program Guide and any other Subservicing Agreement entered into between the
Master Servicer and any Subservicer shall require the Subservicer to accurately
and fully report its borrower credit files to each of the Credit Repositories in
a timely manner.
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 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
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related Mortgage (except as described below) or the interests of the
Securityholders and the Credit Enhancer. Notwithstanding anything in this
Section to the contrary, the Master Servicer or any Subservicer shall not
enforce any prepayment charge to the extent that such enforcement would violate
any applicable law. 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; and
(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, forgiveness, postponement or
indulgence with respect to any of the Home Loans will be included in the
Servicing Certificate, 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, forgiveness, 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
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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 or by the Limited Repurchase Price
Holder pursuant to Section 3.16;
(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, fees (including annual fees), late charge
penalties and prepayment charges 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 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, the Credit Enhancer and the Indenture Trustee, as their
interests may appear. The Master Servicer shall retain all Foreclosure Profits
as additional servicing compensation.
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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 investments shall
mature not later than the Business Day preceding the next succeeding Payment
Date and which investments shall not be sold or disposed of prior to 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 shall 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 remit to the Paying Agent for 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,
made pursuant to Section 3.01, 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 Net Liquidation Proceeds or the proceeds of the purchase of such
Home Loan;
(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;
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(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, the Limited Repurchase
Right Holder 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;
(vii) to clear and terminate the Custodial Account upon the
termination of this Agreement; and
(viii) 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 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
related Mortgaged Property on a replacement cost basis and (ii) the maximum
amount of such insurance available for such 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
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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 upon written 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 Properties 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 Loans, that the
security for, and the timely and full collectability of, such Home Loans 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 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
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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 (iv) as to more than 200 Home
Loans in any calendar year; (B) at no time shall the aggregate Principal
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.
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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
substantially in the form of Exhibit C, 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
applicable, Net 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 related 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 shall 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
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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 shall 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 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.
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Any proceeds from the purchase or repurchase that occurs prior to the Home
Loan becoming a Liquidated Home Loan of any Home Loan pursuant to the terms of
this Servicing Agreement (including without limitation Sections 2.03, 3.15 and
3.16) 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 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 it became a Liquidation Home Loan; 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, and to cause the removal from the registration on the MERS(R) System of
such Mortgage, if applicable. 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
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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 related Assignment 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.
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 shall 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.
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Section 3.10. Annual Statement as to Compliance. (a) The Master Servicer
will deliver to the Depositor, the Issuer, the Credit Enhancer and the Indenture
Trustee on or before the earlier of (a) March 31 of each year or (b) with
respect to any calendar year during which the Depositor's annual report on Form
10-K is required to be filed in accordance with the Exchange Act and the rules
and regulations of the Commission, the date on which the annual report on Form
10-K is required to be filed in accordance with the Exchange Act and the rules
and regulations of the Commission, a servicer compliance certificate, signed by
an authorized officer of the Master Servicer, as described in Items 1122(a),
1122(b) and 1123 of Regulation AB, to the effect that:
(i) A review of the Master Servicer's activities during the reporting
period and of its performance under this Servicing Agreement has been made
under such officer's supervision.
(ii) To the best of such officer's knowledge, based on such review,
the Master Servicer has fulfilled all of its obligations under this
Servicing Agreement in all materials respects throughout the reporting
period or, if there has been a failure to fulfill any such obligation in
any material respect, specifying each such failure known to such officer
and the nature and status thereof.
The Master Servicer shall use commercially reasonable efforts to obtain
from all other parties participating in the servicing function any additional
certifications required under Item 1123 of Regulation AB to the extent required
to be included in a Report on Form 10-K; provided, however, that a failure to
obtain such certifications shall not be a breach of the Master Servicer's duties
hereunder if any such party fails to deliver such a certification.
(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.
Section 3.11. Annual Independent Public Accountants' Servicing Report. On
or before the earlier of (a) March 31 of each year or (b) with respect to any
calendar year during which the Depositor's annual report on Form 10-K is
required to be filed in accordance with the Exchange Act and the rules and
regulations of the Commission, the date on which the annual report is required
to be filed in accordance with the Exchange Act and the rules and regulations of
the Commission, the Master Servicer at its expense shall cause a firm of
independent public accountants, which shall be members of the American Institute
of Certified Public Accountants, to furnish a report to the Depositor, the
Credit Enhancer and the Indenture Trustee the attestation required under Item
1122(b) of Regulation AB. In rendering such statement, such firm may rely, as to
matters relating to the direct servicing of 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.
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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 and 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
shall be 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 fidelity 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 2006, 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 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 90 days or longer for a price equal to the Repurchase
Price.
Section 3.16. Limited Home Loan Repurchase Right. The Limited Repurchase
Right Holder will have the irrevocable option at any time to purchase any of the
Home Loans at the Repurchase Price, up to a maximum of five Home Loans. In the
event that this option is exercised as to any five Home Loans in the aggregate,
this option will thereupon terminate. If at any time the Limited Repurchase
Right Holder makes a payment to the Custodial Account covering the amount of the
Repurchase Price for such a Home Loan, and the Limited Repurchase Right Holder
provides to the Indenture Trustee a certification signed by a Servicing Officer
stating that the amount of such payment has been deposited in the Custodial
Account, then, at the request of the Limited Repurchase Right Holder, the
Indenture Trustee shall execute the assignment of such Home Loan, without
recourse, to the Limited Repurchase Right Holder
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which shall succeed to all the Indenture Trustee's right, title and interest in
and to such Home Loan, and all security and documents relative thereto. Such
assignment shall be an assignment outright and not for security. The Limited
Repurchase Right Holder will thereupon own such Mortgage, and all such security
and documents, free of any further obligation to the Indenture Trustee with
respect thereto.
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 (or
with respect to any Payment Date for which an Insured Payment will occur, no
later than 12:00 P.M. New York City time, on the second Business Day prior to
the applicable Payment 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 at ▇▇▇.▇▇▇▇▇▇.▇▇▇/▇▇▇ 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 applicable Record Date, Determination Date and Payment Date;
(ii) the aggregate amount of payments received with respect to the
Home Loans, including prepayment amounts;
(iii) the Servicing Fee and Subservicing Fee payable to the Master
Servicer and the Subservicer;
(iv) the amount of any other fees or expenses paid, and the identity
of the party receiving such fees or expenses;
(v) the aggregate amount of (a) Interest Collections, (b) Principal
Collections and (c) Substitution Adjustment Amounts for such Collection
Period;
(vi) (a) the amount of such distribution to the Securityholders of
such Class applied to reduce the Note Balance or Certificate Principal
Balance thereof, and (b) the aggregate amount included therein representing
Principal Prepayments;
(vii) the amount of such distribution to Holders of such Class of
Securities allocable to interest;
(viii) if the distribution to the Holders of such Class of Securities
is less than the full amount that would be distributable to such Holders if
there were sufficient funds available therefor, the amount of the
shortfall;
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(ix) the aggregate Note Balance or Certificate Principal Balance of
each Class of Securities, before and after giving effect to the amounts
distributed on such Payment Date, separately identifying any reduction
thereof due to Liquidation Loss Amounts other than pursuant to an actual
distribution of principal;
(x) the Note Rate for each Class of Notes for such Payment Date,
separately identifying LIBOR for such Payment Date, if applicable.
(xi) the weighted average remaining term to maturity of the Home Loans
after giving effect to the amounts distributed on such Payment Date;
(xii) the weighted average Loan Rates of the Home Loans after giving
effect to the amounts distributed on such Payment Date;
(xiii) the percentage of the outstanding principal balances of the
Notes after giving effect to the distributions on that Payment Date;
(xiv) the number and Pool Balance of the Home Loans after giving
effect to the distribution of principal on such Payment Date and the number
of Home Loans at the beginning and end of the preceding Collection Period;
(xv) on the basis of the most recent reports furnished to it by
Sub-Servicers, the number and aggregate Loan Balances of Home Loans (a) as
to which the Monthly Payment is Delinquent 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;
(xvi) the aggregate Liquidation Loss Amounts with respect to the
related Collection Period, the amount of any Liquidation Loss Payment
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;
(xvii) any material modifications, extensions or waivers to the terms
of the Home Loans during the Collection Period or that have cumulatively
become material over time;
(xviii) any material breaches of Home Loan representations or
warranties or covenants in the Home Loan Purchase Agreement.
(xix) The amount of any Insured Payment, if any, for such Payment Date
and the aggregate amount of prior draws thereunder not yet reimbursed;
(xx) the number, aggregate principal balance and book value of any REO
properties;
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(xxi) the aggregate accrued interest remaining unpaid, if any, for
each Class of Securities, after giving effect to the distribution made on
such Payment Date;
(xxii) (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;
(xxiii) 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;
(xxiv) [reserved];
(xxv) the aggregate amount of any recoveries on previously foreclosed
loans from Sellers due to a breach of a representation or warranty assigned
to the Trustee;
(xxvi) the amount, if any, to be paid by a Derivative Counterparty
under a Derivative Contract;
(xxvii) whether or not a Servicing Trigger has occurred; and
(xxviii) the Outstanding Reserve Amount and the Reserve Amount Target
immediately following such Payment Date.
In the case of information furnished pursuant to clauses (vi) and (vii)
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;
(vi) the Combined Loan-to-Value Ratio prior to the Capitalization
Workout;
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(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.
Section 4.03. Calculation of Adjusted Issue Price. The Master Servicer
shall calculate the Adjusted Issue Price for purposes of calculating the
Termination Price.
Section 4.04. Exchange Act Reporting.
(a) The Master Servicer shall, on behalf of the Depositor and in respect of
the Trust Estate, sign and cause to be filed with the Commission any periodic
reports required to be filed under the provisions of the Exchange Act, and the
rules and regulations of the Commission thereunder including, without
limitation, reports on Form 10-K, Form 10-D and Form 8-K. In connection with the
preparation and filing of such periodic reports, the Indenture Trustee shall
timely provide to the Master Servicer (I) a list of Securityholders as shown on
the Register as of the end of each calendar year, (II) copies of all pleadings,
other legal process and any other documents relating to any claims, charges or
complaints involving the Indenture Trustee, as trustee hereunder, or the Trust
Estate that are received by the Indenture Trustee, (III) notice of all matters
that, to the actual knowledge of a Responsible Officer of the Indenture Trustee,
have been submitted to a vote of the Securityholders, other than those matters
that have been submitted to a vote of the Securityholders at the request of the
Depositor or the Master Servicer, and (IV) notice of any failure of the
Indenture Trustee to make any distribution to the Securityholders as required
pursuant to this Agreement. Neither the Master Servicer nor the Indenture
Trustee shall have any liability with respect to the Master Servicer's failure
to properly
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prepare or file such periodic reports resulting from or relating to the
Master Servicer's inability or failure to obtain any information not resulting
from the Master Servicer's own negligence or willful misconduct
(b) Any Form 10-K filed with the Commission in connection with this Section
4.04 shall include:
(i) A certification, signed by the senior officer in charge of the
servicing functions of the Master Servicer, in the form attached as Exhibit
D hereto or such other form as may be required or permitted by the
Commission (the "Form 10-K Certification"), in compliance with Rules 13a-14
and 15d-14 under the Exchange Act and any additional directives of the
Commission.
(ii) A report regarding its assessment of compliance during the
preceding calendar year with all applicable servicing criteria set forth in
relevant Commission regulations with respect to mortgage-backed securities
transactions taken as a whole involving the Master Servicer that are backed
by the same types of assets as those backing the certificates, as well as
similar reports on assessment of compliance received from other parties
participating in the servicing function as required by relevant Commission
regulations, as described in Item 1122(a) of Regulation AB. The Master
Servicer shall obtain from all other parties participating in the servicing
function any required certifications.
(iii) With respect to each assessment report described immediately
above, a report by a registered public accounting firm that attests to, and
reports on, the assessment made by the asserting party, as set forth in
relevant Commission regulations, as described in Regulation 1122(b) of
Regulation AB and Section 3.11.
(iv) The servicer compliance certificate required to be delivered
pursuant Section 3.10.
(c) In connection with the Form 10-K Certification, the Indenture Trustee
shall provide the Master Servicer with a back-up certification substantially in
the form attached hereto as Exhibit E.
(d) This Section 4.04 may be amended in accordance with this Servicing
Agreement without the consent of the Securityholders.
(e) The Indenture Trustee shall make available on the Indenture Trustee's
internet website each of the reports filed with the Commission by or on behalf
of the Depositor under the Exchange Act, as soon as reasonably practicable upon
delivery of such reports to the Indenture Trustee.
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ARTICLE V
PAYMENT ACCOUNT
Section 5.01. Payment Account. The Indenture Trustee shall establish and
maintain a Payment Account entitled "U.S. Bank National Association, as
Indenture Trustee, for the benefit of the Securityholders, the Credit Enhancer
and the Certificate Paying Agent pursuant to the Indenture, dated as of December
28, 2006, between Home Loan Trust 2006-HI5 and U.S. Bank National Association".
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 or a fund for which
such institution serves as custodian 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.
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 Person into which the Master Servicer may be merged
or converted or with which it may be consolidated, or any Person resulting from
any merger, conversion or consolidation to which the Master Servicer shall be a
party, or any Person 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.
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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
Home Loans and is reasonably satisfactory to the Indenture Trustee (as pledgee
of the Home Loans), the Credit Enhancer and the Issuer, 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 Trust to be treated as a
corporation for federal or state income tax purposes.
Notwithstanding anything to the contrary set forth herein, any Person into
which the Master Servicer may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Master Servicer shall be a party, or any Person
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.
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 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
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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 shall have 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 Credit Enhancer and the
Indenture Trustee; (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 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. The Master Servicer shall pay the reasonable
expenses of the Indenture Trustee in connection with any servicing transition
hereunder.
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.
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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 or the Indenture except any such expense,
disbursement or advance as may arise from its negligence, willful 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
(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.
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Notwithstanding the foregoing, the indemnification provided by the Master
Servicer in this Section 6.06(b) shall not be available (a) for 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 or (b) where indemnification
by the Indenture Trustee is required pursuant to Section 9.05(a).
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 to remit to the Paying Agent for deposit in the 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
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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 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 (so long as no Credit Enhancer Default
has occurred and is continuing), or the Credit Enhancer (so long as no Credit
Enhancer Default has occurred and is continuing), 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 (so long
as no Credit Enhancer Default has occurred and is continuing), or the Credit
Enhancer (so long as no Credit Enhancer Default has occurred and is continuing)
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
Indenture Trustee, 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 as successor Master Servicer, 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
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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.
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
Issuer 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 (so long as no Credit Enhancer Default has occurred and is
continuing), 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
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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 herein above provided. In connection with such appointment and
assumption, the successor Master Servicer shall 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.
(d) In connection with the termination or resignation of the Master
Servicer hereunder, either (i) the successor Master Servicer, including the
Indenture Trustee if the Indenture Trustee is acting as successor Master
Servicer, shall represent and warrant that it is a member of MERS in good
standing and shall agree to comply in all material respects with the rules and
procedures of MERS in connection with the servicing of the Home Loans that are
registered with MERS, in which case the predecessor Master Servicer shall
cooperate with the successor Master Servicer in causing MERS to revise its
records to reflect the transfer of servicing to the successor Master Servicer as
necessary under MERS' rules and regulations, or (ii) the predecessor Master
Servicer shall cooperate with the successor Master Servicer in causing MERS to
execute and deliver an assignment of Mortgage in recordable form to transfer the
Mortgage from MERS to the Indenture Trustee and to execute and deliver such
other notices, documents and other instruments as may be necessary or desirable
to effect a transfer of such Home Loan or servicing of such Home Loan on the
MERS System to the successor Master Servicer. The predecessor Master Servicer
shall file or cause to be filed any such assignment in the appropriate recording
office. The predecessor Master Servicer shall bear any and all fees of MERS,
costs of preparing any assignments of Mortgage, and fees and costs of filing any
assignments of Mortgage that may be required under this subsection (d). The
successor Master
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Servicer shall cause such assignment to be delivered to the Indenture Trustee or
the Custodian promptly upon receipt of the original with evidence of recording
thereon or a copy certified by the public recording office in which such
assignment was recorded.
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.
Section 7.04. Servicing Trigger; Removal of Master Servicer. (a) Upon
determination by the Credit Enhancer that a Servicing Trigger has occurred, the
Credit Enhancer shall give notice of such Servicing Trigger to the Master
Servicer, the Depositor, the Indenture Trustee and to each Rating Agency.
(b) At any time after such determination and while a Servicing Trigger is
continuing, the Credit Enhancer may direct the Indenture Trustee in writing to
remove the Master Servicer if the Credit Enhancer makes a determination that the
manner of master servicing was a factor contributing to the size of the
delinquencies or losses incurred in the Trust Estate.
(c) Upon receipt of directions to remove the Master Servicer pursuant to
the preceding clause (b), the Indenture Trustee shall notify the Master Servicer
that it has been terminated and the Master Servicer shall be terminated in the
same manner as specified in Sections 7.01 and 7.02.
(d) After notice of occurrence of a Servicing Trigger has been given and
while a Servicing Trigger is continuing, until and unless the Master Servicer
has been removed as provided in clause (b), the Master Servicer covenants and
agrees to act as the Master Servicer for a term from the occurrence of the
Servicing Trigger to the end of the calendar quarter in which such Servicing
Trigger occurs, which term may at the Credit Enhancer's discretion be extended
by notice to the Indenture Trustee for successive terms of three (3) calendar
months each, until the termination of the Trust Estate. The Master Servicer
will, upon the receipt of each such notice of extension (a "Master Servicer
Extension Notice") become bound for the duration of the term covered by such
Master Servicer Extension Notice to continue as Master Servicer subject to and
in accordance with this Agreement. If, as of the fifteenth (15th) day prior to
the last day of any term as the Master Servicer, the Indenture Trustee shall not
have received any Master Servicer Extension Notice from the Credit Enhancer, the
Indenture Trustee shall, within five (5) Business Days thereafter, give written
notice of such no receipt to the Credit Enhancer and the Master Servicer. If any
such term expires without a Master Servicer Extension Notice then the Indenture
Trustee shall act as successor Master Servicer as provided in Section 7.02.
(e) No provision of this Section 7.04 shall have the effect of limiting the
rights of the Depositor, the Indenture Trustee, the Securityholders or the
Credit Enhancer under Section 7.01.
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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 (so long as no Credit Enhancer Default has occurred and
is continuing) 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, WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW), 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, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Addition Director - Bond Administration, (b)
in the case of ▇▇▇▇▇'▇, Home Mortgage Loan Monitoring Group, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, (c) in the case of Standard & Poor's, ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ - 41st Floor, New York, New York 10041, Attention: Residential
Mortgage Surveillance Group, (d) in the case of the Owner Trustee, Wilmington
Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration, (e) in the case
of the Issuer, to Home Loan Trust 2006-HI5, c/o Owner Trustee, Wilmington Trust
Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust Administration, (f) in the case of the
Indenture Trustee, U.S. Bank National Association, Mail Code: EP-MN-WS3D, ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Structured
Finance/RFMSII Home Loan Trust 2006-HI5, (g) in the case of the Credit Enhancer,
Financial Guaranty Insurance Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Structured Finance Surveillance (Home Loan Trust 2006-HI5) (h) in the
case of the Underwriter to Deutsche Bank Securities Inc., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇; 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
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Agency shall be given on a reasonable efforts basis and only as a matter of
courtesy 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 shall
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 shall have any right or obligation hereunder. The
Credit Enhancer is a third-party beneficiary of this Servicing Agreement.
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; provided, however, that no such purchase will
be permitted if it would result in a draw under the Credit Enhancement
Instrument or will result in any amounts owing to the Credit Enhancer remaining
unreimbursed, unless, in either case, the Credit Enhancer consents (so long as
no Credit Enhancer Default has occurred and is continuing) in writing to the
purchase. 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
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receipt of such deposit, the Indenture Trustee or Custodian shall release to the
Master Servicer, the files pertaining to the Home Loans being purchased.
(b) 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.
(c) 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 Insured
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 Insured 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.
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, or of MERS or the MERS(R) System. 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.
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ARTICLE IX
COMPLIANCE WITH REGULATION AB
Section 9.01. Intent of Parties; Reasonableness.
The Depositor, the Indenture Trustee and the Master Servicer acknowledge
and agree that the purpose of this Article IX is to facilitate compliance by the
Depositor with the provisions of Regulation AB and related rules and regulations
of the Commission. The Depositor shall not exercise its right to request
delivery of information or other performance under these provisions other than
in good faith, or for purposes other than compliance with the Securities Act,
the Exchange Act and the rules and regulations of the Commission under the
Securities Act and the Exchange Act. Each of the Master Servicer and the
Indenture Trustee acknowledges that interpretations of the requirements of
Regulation AB may change over time, whether due to interpretive guidance
provided by the Commission or its staff, consensus among participants in the
mortgage-backed securities markets, advice of counsel, or otherwise, and agrees
to comply with reasonable requests made by the Depositor in good faith for
delivery of information under these provisions on the basis of evolving
interpretations of Regulation AB. Each of the Master Servicer and the Indenture
Trustee shall cooperate reasonably with the Depositor to deliver to the
Depositor (including any of its assignees or designees), any and all disclosure,
statements, reports, certifications, records and any other information necessary
in the reasonable, good faith determination of the Depositor to permit the
Depositor to comply with the provisions of Regulation AB.
Section 9.02. Additional Representations and Warranties of the Indenture
Trustee.
(a) The Indenture Trustee shall be deemed to represent to the Depositor as
of the Closing Date and on each date on which information is provided to the
Depositor under Sections 9.01, 9.02(b) or 9.03 that, except as disclosed in
writing to the Depositor prior to such date: (i) it is not aware and has not
received notice that any default, early amortization or other performance
triggering event has occurred as to any other Securitization Transaction due to
any default of the Indenture Trustee; (ii) there are no aspects of its financial
condition that could have a material adverse effect on the performance by it of
its trustee obligations under this Agreement or any other Securitization
Transaction as to which it is the trustee; (iii) there are no material legal or
governmental proceedings pending (or known to be contemplated) against it that
would be material to Noteholders; (iv) there are no relationships or
transactions relating to the Indenture Trustee with respect to the Depositor or
any sponsor, issuing entity, servicer, trustee, originator, significant obligor,
enhancement or support provider or other material transaction party (as such
terms are used in Regulation AB) relating to the Securitization Transaction
contemplated by this Servicing Agreement, as identified by the Depositor to the
Indenture Trustee in writing as of the Closing Date (each, a "Transaction
Party") that are outside the ordinary course of business or on terms other than
would be obtained in an arm's length transaction with an unrelated third party,
apart from the Securitization Transaction, and that are material to the
investors' understanding of the Notes; and (v) the Indenture Trustee is not an
affiliate of any Transaction Party. The Depositor shall notify the Indenture
Trustee of any change in the identity of a Transaction Party after the Closing
Date.
-38-
(b) If so requested by the Depositor on any date following the Closing
Date, the Indenture Trustee shall, within five Business Days following such
request, confirm in writing the accuracy of the representations and warranties
set forth in paragraph (a) of this Section or, if any such representation and
warranty is not accurate as of the date of such confirmation, provide the
pertinent facts, in writing, to the Depositor. Any such request from the
Depositor shall not be given more than once each calendar quarter, unless the
Depositor shall have a reasonable basis for a determination that any of the
representations and warranties may not be accurate.
Section 9.03. Information to Be Provided by the Indenture Trustee.
For so long as the Notes are outstanding, for the purpose of satisfying the
Depositor's reporting obligation under the Exchange Act with respect to any
Class of Notes, the Indenture Trustee shall provide to the Depositor a written
description of (a) any litigation or governmental proceedings pending against
the Indenture Trustee as of the last day of each calendar month that would be
material to Noteholders, and (b) any affiliations or relationships (as described
in Item 1119 of Regulation AB) that develop following the Closing Date between
the Indenture Trustee and any Transaction Party of the type described in Section
9.02(a)(iv) or 9.02(a)(v) as of the last day of each calendar year. Any
descriptions required with respect to legal proceedings, as well as updates to
previously provided descriptions, under this Section 9.03 shall be given no
later than five Business Days prior to the Determination Date following the
month in which the relevant event occurs, and any notices and descriptions
required with respect to affiliations, as well as updates to previously provided
descriptions, under this Section 9.03 shall be given no later than January 31 of
the calendar year following the year in which the relevant event occurs. As of
the date the Depositor or Master Servicer files each Report on Form 10-D and
Report on Form 10-K with respect to the Notes, the Indenture Trustee will be
deemed to represent that any information previously provided under this Article
IX is materially correct and does not have any material omissions unless the
Indenture Trustee has provided an update to such information. The Depositor will
allow the Indenture Trustee to review any disclosure relating to material
litigation against the Indenture Trustee prior to filing such disclosure with
the Commission to the extent the Depositor changes the information provided by
the Indenture Trustee.
Section 9.04. Report on Assessment of Compliance and Attestation.
On or before March 15 of each calendar year, the Indenture Trustee shall:
(a) deliver to the Depositor a report (in form and substance reasonably
satisfactory to the Depositor) regarding the Indenture Trustee's assessment of
compliance with the applicable Servicing Criteria during the immediately
preceding calendar year, as required under Rules 13a-18 and 15d-18 of the
Exchange Act and Item 1122 of Regulation AB. Such report shall be addressed to
the Depositor and signed by an authorized officer of the Indenture Trustee, and
shall address each of the Servicing Criteria specified on Exhibit F hereto; and
(b) deliver to the Depositor a report of a registered public accounting
firm reasonably acceptable to the Depositor that attests to, and reports on, the
assessment of compliance made by the Indenture Trustee and delivered pursuant to
the preceding paragraph. Such attestation shall be in accordance with Rules
1-02(a)(3) and 2-02(g) of Regulation S-X under the Securities Act and the
Exchange Act.
-39-
Section 9.05. Indemnification; Remedies.
(a) The Indenture Trustee shall indemnify the Depositor, each affiliate of
the Depositor, the Master Servicer and each broker dealer acting as underwriter,
placement agent or Initial Purchaser of the Notes or each Person who controls
any of such parties (within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act); and the respective present and former
directors, officers, employees and agents of each of the foregoing, and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out of
or based upon:
(i) (A) any untrue statement of a material fact contained or alleged
to be contained in any information, report, certification, accountants'
attestation or other material provided under this Article IX by or on
behalf of the Indenture Trustee (collectively, the "Indenture Trustee
Information"), or (B) the omission or alleged omission to state in the
Indenture Trustee Information a material fact required to be stated in the
Indenture Trustee Information or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, by way of clarification, that clause (B) of this
paragraph shall be construed solely by reference to the Indenture Trustee
Information and not to any other information communicated in connection
with a sale or purchase of securities, without regard to whether the
Indenture Trustee Information or any portion thereof is presented together
with or separately from such other information; or
(ii) any failure by the Indenture Trustee to deliver any information,
report, certification or other material when and as required under this
Article IX, other than a failure by the Indenture Trustee to deliver the
accountants' attestation.
(b) In the case of any failure of performance described in clause (ii) of
Section 9.05(a), the Indenture Trustee shall (i) promptly reimburse the
Depositor for all costs reasonably incurred by the Depositor in order to obtain
the information, report, certification, accountants' attestation or other
material not delivered as required by the Indenture Trustee and (ii) cooperate
with the Depositor to mitigate any damages that may result from such failure.
(c) The Depositor and the Master Servicer shall indemnify the Indenture
Trustee, each affiliate of the Indenture Trustee or each Person who controls the
Indenture Trustee (within the meaning of Section 15 of the Securities Act and
Section 20 of the Exchange Act), and the respective present and former
directors, officers, employees and agents of the Indenture Trustee, and shall
hold each of them harmless from and against any losses, damages, penalties,
fines, forfeitures, legal fees and expenses and related costs, judgments, and
any other costs, fees and expenses that any of them may sustain arising out of
or based upon (i) any untrue statement of a material fact contained or alleged
to be contained in any information provided under this Servicing Agreement by or
on behalf of the Depositor or Master Servicer for inclusion in any report filed
with Commission under the Exchange Act (collectively, the "RFC Information"), or
(ii) the omission or alleged omission to state in the RFC Information a material
fact required to be stated in the RFC Information or necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, by way of clarification, that clause (ii) of
this paragraph shall be construed solely by reference to the RFC
-40-
Information and not to any other information communicated in connection with a
sale or purchase of securities, without regard to whether the RFC Information or
any portion thereof is presented together with or separately from such other
information.
-41-
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 COMPANY, LLC,
as Master Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Associate
HOME LOAN TRUST 2006-HI5
By: WILMINGTON TRUST COMPANY not in
its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Financial Services Officer
U.S. BANK NATIONAL ASSOCIATION
as Indenture Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇
Title: Vice President
Acknowledged and Agreed
solely with respect to Article IX:
RESIDENTIAL FUNDING
MORTGAGE SECURITIES II, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Servicing Agreement
RFMSII Series 2006-HI5
EXHIBIT A
HOME LOAN SCHEDULE
TO BE PROVIDED UPON REQUEST
A-1
EXHIBIT B
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PREMISES:
That U.S. Bank National Association, 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 United States, and having its principal office located at
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, in the City of St. ▇▇▇▇ in the State of Minnesota, hath
made, constituted and appointed, and does by these presents make, constitute and
appoint Residential Funding Company, LLC, a limited liability company 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 Company, LLC is acting as master servicer pursuant to a
Servicing Agreement, dated as of December 28, 2006 (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-1
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 Company, LLC Seller Contract, or the removal of
any Mortgage from the MERS(R) System or the re-recording of such
Mortgage in the name of MERS.
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.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in Appendix A to the Indenture.
B-2
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.
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity, but
solely as Indenture Trustee under the
Servicing Agreement and the Indenture
------------------------------------- ----------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
▇-▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇ )
ss.
COUNTY OF ▇▇▇▇▇▇ )
On this __ day of December, 2006, before me the undersigned, Notary Public
of said State, personally appeared _______________________________ personally
known to me to be duly authorized officers of U.S. Bank National Association
that executed the within instrument and personally known to me to be the persons
who executed the within instrument on behalf of U.S. Bank National Association
therein named, and acknowledged to me such U.S. Bank National Association
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:
-------------------------------
B-4
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 Company, LLC
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
C-1
EXHIBIT D
FORM OF FORM 10-K CERTIFICATE
I, [identify the certifying individual], certify that:
1. I have reviewed this report on Form 10-K and all reports on Form 10-D
required to be filed in respect of the period covered by this report on Form
10-K of the trust (the Exchange Act periodic reports) pursuant to the Servicing
Agreement dated December 28, 2006 (the "Agreement") among Residential Funding
Company, LLC (the "Master Servicer"), Home Loan Trust 2006-HI5 (the "Issuer")
and U.S. Bank National Association (the "Indenture Trustee") and acknowledged
and agreed to by Residential Funding Mortgage Securities II, Inc.
2. Based on my knowledge, Exchange Act periodic reports, taken as a whole,
do not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading with respect
to the period covered by this report;
3. Based on my knowledge, all of the distribution, servicing and other
information required to be provided under Form 10-D for the period covered by
this report is included in the Exchange Act periodic reports;
4. I am responsible for reviewing the activities performed by the Master
Servicer and based on my knowledge and the compliance review conducted in
preparing the servicer compliance statement required in this report under Item
1123 of Regulation AB and except as disclosed in the Exchange Act periodic
reports, the Master Servicer has fulfilled its obligations under the Agreement;
and
5. All of the reports on assessment of compliance with servicing criteria
for asset-backed securities and their related attestation reports on assessment
of compliance with servicing criteria for asset-backed securities required to be
included in this report in accordance with Item 1122 of Regulation AB and
Exchange Act Rules 13a-18 and 15d-18 have been included as an exhibit to this
report, except as otherwise disclosed in this report. Any material instances of
noncompliance described in such reports have been disclosed in this report on
Form 10-K.
In giving the certifications above, I have reasonably relied on the
information provided to me by the following unaffiliated parties: [the Indenture
Trustee].
Date: ____________
-------------------------------------
[Signature]
Name:
-------------------------------
Title:
------------------------------
* - to be signed by the senior officer in charge of the servicing functions of
the Master Servicer
D-1
EXHIBIT E
[FORM OF BACK-UP CERTIFICATION TO FORM 10-K CERTIFICATE]
The undersigned, a Responsible Officer of [_________] (the "Indenture
Trustee") certifies that:
(a) The Indenture Trustee has performed all of the duties
specifically required to be performed by it pursuant to the provisions of
the Servicing Agreement dated as of December 28, 2006 (the "Agreement") by
and among Residential Funding Company, LLC, as Master Servicer, Home Loan
Trust 2006-HI5, as Issuer and the Indenture Trustee in accordance with the
standards set forth therein.
(b) Based on my knowledge, the list of Securityholders as shown
on the Register as of the end of each calendar year that is provided by the
Indenture Trustee pursuant to the Agreement is accurate as of the last day
of the 20[__] calendar year.
Capitalized terms used and not defined herein shall have the meanings given such
terms in the Agreement.
IN WITNESS WHEREOF, I have duly executed this certificate as of _________,
20__.]
Name:
----------------------------------
Title:
---------------------------------
E-1
EXHIBIT F
SERVICING CRITERIA
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by the Indenture Trustee shall
address, at a minimum, the criteria identified as below as "Applicable Servicing
Criteria":
APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
--------------------------------------------------------- --------------------
REFERENCE CRITERIA
---------------- --------------------------------------
GENERAL SERVICING CONSIDERATIONS
1122(d)(1)(i) Policies and procedures are instituted
to monitor any performance or other
triggers and events of default in
accordance with the transaction
agreements.
1122(d)(1)(ii) If any material servicing activities
are outsourced to third parties,
policies and procedures are instituted
to monitor the third party's
performance and compliance with such
servicing activities.
1122(d)(1)(iii) Any requirements in the transaction
agreements to maintain a back-up
servicer for the pool assets are
maintained.
1122(d)(1)(iv) A fidelity bond and errors and
omissions policy is in effect on the
party participating in the servicing
function throughout the reporting
period in the amount of coverage
required by and otherwise in
accordance with the terms of the
transaction agreements.
CASH COLLECTION AND ADMINISTRATION
1122(d)(2)(i) Payments on pool assets are deposited
into the appropriate custodial bank
accounts and related bank clearing [X] (as to accounts
accounts no more than two business held by
days following receipt, or such other Trustee)
number of days specified in the
transaction agreements.
1122(d)(2)(ii) Disbursements made via wire transfer
on behalf of an obligor or to an [X] (as to
investor are made only by authorized investors only)
personnel.
1122(d)(2)(iii) Advances of funds or guarantees
regarding collections, cash flows or
distributions, and any interest or
other fees charged for such advances,
are made, reviewed and approved as
specified in the transaction
agreements.
F-1
APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
--------------------------------------------------------- --------------------
REFERENCE CRITERIA
---------------- --------------------------------------
1122(d)(2)(iv) The related accounts for the
transaction, such as cash reserve
accounts or accounts established as a [X] (as to accounts
form of overcollateralization, are held by
separately maintained (e.g., with Trustee)
respect to commingling of cash) as set
forth in the transaction agreements.
1122(d)(2)(v) Each custodial account is maintained
at a federally insured depository
institution as set forth in the
transaction agreements. For purposes
of this criterion, "federally insured
depository institution" with respect
to a foreign financial institution
means a foreign financial institution
that meets the requirements of Rule
13k-1(b)(1) of the Securities Exchange
Act.
1122(d)(2)(vi) Unissued checks are safeguarded so as
to prevent unauthorized access.
1122(d)(2)(vii) Reconciliations are prepared on a
monthly basis for all asset-backed
securities related bank accounts,
including custodial accounts and
related bank clearing accounts. These
reconciliations are (A) mathematically
accurate; (B) prepared within 30
calendar days after the bank statement
cutoff date, or such other number of
days specified in the transaction
agreements; (C) reviewed and approved
by someone other than the person who
prepared the reconciliation; and (D)
contain explanations for reconciling
items. These reconciling items are
resolved within 90 calendar days of
their original identification, or such
other number of days specified in the
transaction agreements.
INVESTOR REMITTANCES AND REPORTING
1122(d)(3)(i) Reports to investors, including those
to be filed with the Commission, are
maintained in accordance with the
transaction agreements and applicable
Commission requirements. Specifically,
such reports (A) are prepared in
accordance with timeframes and other
terms set forth in the transaction
agreements; (B) provide information
calculated in accordance with the
terms specified in the transaction
agreements; (C) are filed with the
Commission as required by its rules
and regulations; and (D) agree with
investors' or the trustee's records as
to the total unpaid principal balance
and number of pool assets serviced by
the servicer.
F-2
APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
--------------------------------------------------------- --------------------
REFERENCE CRITERIA
---------------- --------------------------------------
1122(d)(3)(ii) Amounts due to investors are allocated
and remitted in accordance with
timeframes, distribution priority and [X]
other terms set forth in the
transaction agreements.
1122(d)(3)(iii) Disbursements made to an investor are
posted within two business days to the
servicer's investor records, or such [X]
other number of days specified in the
transaction agreements.
1122(d)(3)(iv) Amounts remitted to investors per the
investor reports agree with cancelled [X]
checks, or other form of payment, or
custodial bank statements.
POOL ASSET ADMINISTRATION
1122(d)(4)(i) Collateral or security on pool assets
is maintained as required by the
transaction agreements or related
asset pool documents.
1122(d)(4)(ii) Pool assets and related documents are
safeguarded as required by the
transaction agreements.
1122(d)(4)(iii) Any additions, removals or
substitutions to the asset pool are
made, reviewed and approved in
accordance with any conditions or
requirements in the transaction
agreements.
1122(d)(4)(iv) Payments on pool assets, including any
payoffs, made in accordance with the
related pool assets documents are
posted to the servicer's obligor
records maintained no more than two
business days after receipt, or such
other number of days specified in the
transaction agreements, and allocated
to principal, interest or other items
(e.g., escrow) in accordance with the
related pool asset documents.
1122(d)(4)(v) The servicer's records regarding the
pool asset agree with the servicer's
records with respect to an obligor's
unpaid principal balance.
1122(d)(4)(vi) Changes with respect to the terms or
status of an obligor's pool asset
(e.g., loan modifications or
re-agings) are made, reviewed and
approved by authorized personnel in
accordance with the transaction
agreements and related pool asset
documents.
1122(d)(4)(vii) Loss mitigation or recovery actions
(e.g., forbearance plans,
modifications and deeds in lieu of
foreclosure, foreclosures and
repossessions, as applicable) are
initiated, conducted and concluded in
accordance with the
F-3
APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
--------------------------------------------------------- --------------------
REFERENCE CRITERIA
---------------- --------------------------------------
timeframes or other requirements
established by the transaction
agreements.
1122(d)(4)(viii) Records documenting collection efforts
are maintained during the period a
pool asset is delinquent in accordance
with the transaction agreements. Such
records are maintained on at least a
monthly basis, or such other period
specified in the transaction
agreements, and describe the entity's
activities in monitoring delinquent
pool assets including, for example,
phone calls, letters and payment
rescheduling plans in cases where
delinquency is deemed temporary (e.g.,
illness or unemployment).
1122(d)(4)(ix) Adjustments to interest rates or rates
of return for pool assets with
variable rates are computed based on
the related pool asset documents.
1122(d)(4)(x) Regarding any funds held in trust for
an obligor (such as escrow accounts):
(A) such funds are analyzed, in
accordance with the obligor's pool
asset documents, on at least an annual
basis, or such other period specified
in the transaction agreements; (B)
interest on such funds is paid, or
credited, to obligors in accordance
with applicable pool asset documents
and state laws; and (C) such funds are
returned to the obligor within 30
calendar days of full repayment of the
related pool asset, or such other
number of days specified in the
transaction agreements.
1122(d)(4)(xi) Payments made on behalf of an obligor
(such as tax or insurance payments)
are made on or before the related
penalty or expiration dates, as
indicated on the appropriate bills or
notices for such payments, provided
that such support has been received by
the servicer at least 30 calendar days
prior to these dates, or such other
number of days specified in the
transaction agreements.
1122(d)(4)(xii) Any late payment penalties in
connection with any payment to be made
on behalf of an obligor are paid from
the servicer's funds and not charged
to the obligor, unless the late
payment was due to the obligor's error
or omission.
F-4
APPLICABLE
SERVICING CRITERIA SERVICING CRITERIA
--------------------------------------------------------- --------------------
REFERENCE CRITERIA
---------------- --------------------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an
obligor are posted within two business
days to the obligor's records
maintained by the servicer, or such
other number of days specified in the
transaction agreements.
1122(d)(4)(xiv) Delinquencies, charge-offs and
uncollectible accounts are recognized
and recorded in accordance with the
transaction agreements.
1122(d)(4)(xv) Any external enhancement or other
support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation [X]
AB, is maintained as set forth in the
transaction agreements.
F-5