EXHIBIT 99.3
EXECUTION COPY
RECONSTITUTED SERVICING AGREEMENT
THIS RECONSTITUTED SERVICING AGREEMENT (this "Agreement"), entered into
as of the 1st day of November, 2002, by and between XXXXXXX XXXXX MORTGAGE
CAPITAL INC. (the "Seller"), HSBC BANK USA (the "Trustee") and XXXXX FARGO HOME
MORTGAGE, INC., a California corporation (formerly known as Norwest Mortgage,
Inc. and referred to herein as the "Servicer"), recites and provides as follows:
RECITALS
WHEREAS, the Seller acquired certain subprime residential mortgage
loans from the Servicer pursuant to the Seller's Warranties and Servicing
Agreement between the Seller and the Servicer, dated as of August 1, 2002 (the
"Servicing Agreement") and attached hereto as Exhibit B.
WHEREAS, the Seller has conveyed the mortgage loans identified on
Exhibit C hereto (the "Serviced Mortgage Loans") to Xxxxxxx Xxxxx Mortgage
Investors, Inc., a Delaware corporation (the "Depositor"), which in turn has
conveyed the Serviced Mortgage Loans to the Trustee, pursuant to a trust
agreement, dated as of November 1, 2002 (the "Trust Agreement"), among the
Trustee, Xxxxx Fargo Bank Minnesota, N.A., as securities administrator (the
"Securities Administrator") and the Depositor.
WHEREAS, the Serviced Mortgage Loans are currently being serviced by
the Servicer pursuant to the Servicing Agreement.
WHEREAS, the Seller desires that the Servicer continue to service the
Serviced Mortgage Loans, and the Servicer has agreed to do so, subject to the
rights of the Seller and the Trustee (at the direction of the Depositor or
certificateholders) to terminate the rights and obligations of the Servicer
hereunder as set forth herein and to the other conditions set forth herein.
WHEREAS, the Seller and the Servicer agree that the provisions of the
Servicing Agreement shall apply to the Serviced Mortgage Loans, except to the
extent otherwise provided herein and that this Agreement shall govern the
Serviced Mortgage Loans for so long as such Serviced Mortgage Loans remain
subject to the provisions of the Trust Agreement.
WHEREAS, the Trustee (at the direction of the NIMs Insurer (as defined
below), the Depositor or the certificateholders) and any successor trustee shall
be obligated to supervise the servicing of the Serviced Mortgage Loans and shall
have the right, at the direction of the Depositor, the NIMs Insurer or the
certificateholders (with the consent of the NIMs Insurer), to terminate the
rights and obligations of the Servicer under this Agreement.
WHEREAS, subsequent to the Closing Date, Xxxxxxx Xxxxx Mortgage Capital
Inc. intends to convey all of its rights, title and interest in and to the Class
C and Class P Certificates and the payments and all other proceeds received
thereunder to an owner trust in which it will hold the sole equity interest,
which trust will issue net interest margin securities (the "NIM Securities")
pursuant to an indenture, which NIM Securities will be secured, in part, by
payments on such Classes of the Certificates (the "NIMs Transaction").
WHEREAS, one or more insurers (collectively, the "NIMs Insurer") may
issue one or more insurance policies guaranteeing certain payments under the NIM
Securities to be issued in the NIMs Transaction.
WHEREAS, the Seller and the Servicer intend that the Securities
Administrator and the NIMs Insurer are intended third party beneficiaries of
this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements hereinafter
set forth and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Seller, the Servicer and the
Trustee hereby agree as follows:
2
AGREEMENT
1. Definitions. Capitalized terms used and not defined in this
Agreement, including Exhibit A hereto and any provisions of the Servicing
Agreement incorporated by reference herein (regardless if such terms are defined
in the Servicing Agreement), shall have the meanings ascribed to such terms in
the Trust Agreement. The parties acknowledge that this Agreement shall
constitute an Assignment and Assumption Agreement between the Servicer and the
Trust Fund with respect to the Servicing Agreement.
2. Custodianship. The parties hereto acknowledge that Xxxxx Fargo
Bank Minnesota, N.A. will act as custodian (the "Custodian") of the Servicing
Files for the Trustee pursuant to a Custodial Agreement, dated November 1, 2002,
between the Custodian and the Trustee.
3. Servicing. The Servicer agrees, with respect to the Serviced
Mortgage Loans, to perform and observe the duties, responsibilities and
obligations that are to be performed and observed under the provisions of the
Servicing Agreement, except as otherwise provided herein and on Exhibit A
hereto, and that the provisions of the Servicing Agreement, as so modified, are
and shall be a part of this Agreement to the same extent as if set forth herein
in full.
4. Trust Cut-off Date. The parties hereto acknowledge that by
operation of Section 4.05 and Section 5.01 of the Servicing Agreement, the
remittance on December 18, 2002 to the Trust Fund is to include principal due
after November 1, 2002 (the "Trust Cut-off Date") plus interest, at the Mortgage
Loan Remittance Rate collected during the related Due Period exclusive of any
portion thereof allocable to a period prior to the Trust Cut-off Date, with the
adjustments specified in clauses (b), (c) and (d) of Section 5.01 of the
Servicing Agreement.
5. Supervision of Servicing; Termination of Servicer. The
Servicer, including any successor servicer hereunder, shall be subject to the
supervision of the Trustee (at the direction of the Depositor or
certificateholders), which Trustee shall be obligated to ensure that the
Servicer services the Serviced Mortgage Loans in accordance with the provisions
of this Agreement. The Trustee, acting on behalf of the Xxxxxxx Xxxxx Mortgage
Investors Mortgage Loan Asset-Backed Certificates, Series 2002-HE1 Trust (the
"Trust Fund") created pursuant to the Trust Agreement, shall have the same
rights as the Seller under the Servicing Agreement to enforce the obligations of
the Servicer under the Servicing Agreement and the term "Purchaser" as used in
the Servicing Agreement in connection with any rights of the Purchaser shall
refer to the Trust Fund or, as the content requires, the Trustee acting in its
capacity as agent for the Trust Fund, except as otherwise specified in Exhibit A
hereto. The Trustee (at the direction of the NIMs Insurer (except in the event
of a NIMs Insurer Default) or at the direction of the Depositor or
certificateholders with the consent of the NIMs Insurer (except in the event of
a NIMs Insurer Default)) shall be entitled to terminate the rights and
obligations of the Servicer under this Agreement upon the failure of the
Servicer to perform any of its obligations under this Agreement, which failure
results in an Event of Default as provided in Section 10.01 of the Servicing
Agreement. Notwithstanding anything herein to the contrary, in no event shall
the Trustee or the Securities Administrator be required to assume any of
obligations of the Seller under the Servicing Agreement and in connection with
the performance of the Trustee's or the Securities Administrator's duties
hereunder the parties and other signatories hereto agree that the Trustee and
the Securities Administrator shall be entitled to all of the rights, protections
and limitations of liability afforded to the Trustee and the Securities
Administrator under the Trust Agreement.
6. No Representations. Except as described in Exhibit A, the
Servicer shall not be obligated or required to make any representations and
warranties regarding the characteristics of the Serviced Mortgage Loans (other
than those representations and warranties made by the Servicer in Section 3.02
of
3
the Servicing Agreement hereby restated as of the date of the Servicing
Agreement) in connection with the transactions contemplated by the Trust
Agreement and issuance of the Certificates issued pursuant thereto.
7. Servicing of Mortgage Loans. As of the Closing Date, the
Servicer has serviced the Mortgage Loans in accordance with the terms of the
Servicing Agreement, provided accurate statements to the Seller pursuant to the
Servicing Agreement, and otherwise complied with all of its covenants and
obligations under the Servicing Agreement. The Servicer has taken no action and
has not omitted to take any required action the omission of which would have the
effect of impairing any mortgage insurance or guarantee on any Mortgage Loans.
8. Closing. The Servicer hereby acknowledges that on or before
the closing of the transactions contemplated by the Trust Agreement (the
"Closing Date"), the Servicer shall deliver to counsel for the Depositor (i) an
opinion of counsel, a form of which is attached hereto as Exhibit D and (ii) an
officer's certificate, a form of which is attached hereto as Exhibit E.
9. Notices. All notices and communications between or among the
parties hereto (including any third party beneficiary thereof) or required to be
provided to the Trustee or Securities Administrator shall be in writing and
shall be deemed received or given when mailed first-class mail, postage prepaid,
addressed to each other party at its address specified below or, if sent by
facsimile or electronic mail, when facsimile or electronic confirmation of
receipt by the recipient is received by the sender of such notice. Each party
may designate to the other parties in writing, from time to time, other
addresses to which notices and communications hereunder shall be sent.
All notices required to be delivered to the Securities Administrator
under this Agreement shall be delivered to the Securities Administrator at the
following address:
Xxxxx Fargo Bank Minnesota, N.A.
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000-0000
Attn: Client Manager
MLMI 2002-HE1
Telephone: 000-000-0000
Facsimile: 000-000-0000
All remittances required to be made to the Securities Administrator
under this Agreement shall be made on a scheduled/scheduled to the following
wire account:
Xxxxx Fargo Bank, N.A.
San Francisco, California
ABA# 000-000-000
Account Name: Corporate Trust Clearing
Account Number: 0000000000
Beneficiary: Xxxxx Fargo Bank Minnesota, N.A.
For further credit to: Account Number 00000000
All notices required to be delivered to the Trustee hereunder shall be
delivered to the Trustee at the following address:
4
HSBC Bank USA
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Issuer Servicing Department, MLMI 2002-HE1
Telephone: 000-000-0000
Facsimile: 000-000-0000
All notices required to be delivered to the Seller hereunder shall be
delivered to the Seller, at the following address:
Xxxxxxx Xxxxx Mortgage Capital Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset-Backed Finance, Xxxxxxx Xxxxx Mortgage
Investors, Inc.
Mortgage Loan Asset-Backed Certificates, Series 2002-HE1 Trust
Telephone: 000-000-0000
Facsimile: 000-000-0000
All notices required to be delivered to the NIMs Insurer hereunder
shall be delivered to the NIMs Insurer, at the following address:
Radian Insurance Inc.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: General Counsel
Telephone: 000-000-0000
Facsimile: 000-000-0000
All notices required to be delivered to the Servicer hereunder shall be
delivered to its office at the address for notices as set forth in the Servicing
Agreement.
10. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, NOTWITHSTANDING
NEW YORK OR OTHER CHOICE OF LAW RULES TO THE CONTRARY.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all of which counterparts shall together constitute but one and the same
instrument.
12. Credit Risk Manager. The Servicer agrees to enter into a
Credit Risk Management Agreement in a form similar to that previously negotiated
with The Murrayhill Company.
[SIGNATURE PAGES IMMEDIATELY FOLLOW]
5
Executed as of the day and year first above written.
XXXXXXX XXXXX MORTGAGE CAPITAL INC.
as Seller
By: ______________________________
Name: Xxxxxxx X. Xxxx, Xx.
Title: Vice President
XXXXX FARGO HOME MORTGAGE, INC.,
as Servicer
By: ______________________________
Name: Xxxxxx Xxxx
Title: Vice President
HSBC BANK USA,
as Trustee
By: ______________________________
Name: Xxxx X. Xxxxx
Title: Vice President
Acknowledged:
XXXXX FARGO BANK MINNESOTA, N.A.,
as Securities Administrator
By: _____________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A
Modifications to the Servicing Agreement
1. Unless otherwise specified herein, any provisions of the Servicing
Agreement, including definitions, relating to (i) representations and
warranties of the Seller and (ii) Whole Loan Transfers and Pass-Through
Transfers and reconstitutions shall be disregarded for purposes
relating to this Agreement. The exhibits to the Servicing Agreement and
all references to such exhibits shall also be disregarded.
2. The definition of "Qualified Substitute Mortgage Loan" is hereby
amended by adding the following four clauses to the end of such
definition:
(v) have a Gross Margin not less than that of the Deleted
Mortgage Loan, (vi) have the same Index as the Deleted
Mortgage Loan, (vii) have a FICO credit score not less than
that of the Deleted Mortgage Loan, (viii) have an LTV not
greater than that of the Deleted Mortgage Loan and (ix) be
subject to a Prepayment Premium at least equal to the
Prepayment Premium of the Deleted Mortgage Loan, if any.
3. A new definition of "Realized Loss" is added to Article I immediately
following the definition of "Qualified Substitute Mortgage Loan" to
read as follows:
Realized Loss: With respect to each Liquidated Mortgage Loan
(as defined in the Trust Agreement), an amount equal to (i)
the unpaid principal balance of such Mortgage Loan as of the
date of liquidation, minus (ii) Liquidation Proceeds received,
to the extent allocable to principal, net of amounts that are
reimbursable therefrom to the Servicer with respect to such
Mortgage Loan (other than Monthly Advances of principal)
including expenses of liquidation.
4. The parties acknowledge that the fourth paragraph of Section 2.02 shall
be inapplicable to this Agreement.
5. The parties acknowledge that Section 2.03 (Custodial Agreement;
Delivery of Documents) shall be superceded by the provisions of the
Custodial Agreement.
6. A new Section 3.02(ll) (Credit Insurance) is hereby added to read as
follows:
Section 3.02(ll) Credit Insurance.
No proceeds from any Mortgage Loan were used to finance single-premium
credit insurance policies.
7. A new Section 3.02(mm) (Credit Reporting) is hereby added as follows:
Section 3.02(mm) Credit Reporting.
With respect to each Mortgage Loan, as of the Closing Date, the Company
has fully furnished and shall fully furnish, on a monthly basis, in
accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (favorable and
unfavorable) on its borrower credit files to Equifax, Experian and
Trans Union Credit Information Company.
A-1
8. Four new paragraphs are hereby added at the end of Section 3.01
(Company Representations and Warranties) to read as follows:
It is understood and agreed that the representations
and warranties set forth in Section 3.01 (a) through (h), (j)
and (l) shall survive the engagement of the Servicer to
perform the servicing responsibilities hereunder and the
delivery of the Servicing Files to the Servicer and shall
inure to the benefit of the Trustee, the NIMs Insurer, the PMI
Insurer, the Trust Fund and the Securities Administrator. Upon
discovery by any of the Servicer, the NIMs Insurer, the
Securities Administrator or the Trustee of a breach of any of
the foregoing representations and warranties which materially
and adversely affects the ability of the Servicer to perform
its duties and obligations under this Agreement or otherwise
materially and adversely affects the value of the Mortgage
Loans, the Mortgaged Property or the priority of the security
interest on such Mortgaged Property or the interest of the
Trustee or the Trust Fund, the party discovering such breach
shall give prompt written notice to the others.
Within 60 days of the earlier of either discovery by
or notice to the Servicer of any breach of a representation or
warranty set forth in Section 3.01 which materially and
adversely affects the ability of the Servicer to perform its
duties and obligations under this Agreement or otherwise
materially and adversely affects the value of the Loans, the
Mortgaged Property or the priority of the security interest on
such Mortgaged Property, the Servicer shall use its best
efforts promptly to cure such breach in all material respects
and, if such breach cannot be cured, the Servicer shall, at
the Trustee's option, assign the Servicer's rights and
obligations under this Agreement (or respecting the affected
Loans) to a successor Servicer selected by the Trustee with
the prior consent and approval of the Depositor, the PMI
Insurer and the NIMs Insurer. Such assignment shall be made in
accordance with Section 12.01.
In addition, the Servicer shall indemnify (from its
own funds) the Trustee, the Trust Fund, the NIMs Insurer, the
PMI Insurer and the Securities Administrator and hold each of
them harmless against any costs resulting from any claim,
demand, defense or assertion based on or grounded upon, or
resulting from, a breach of the Servicer's representations and
warranties contained in this Agreement. It is understood and
agreed that the remedies set forth in this Section 3.01
constitute the sole remedies of the Securities Administrator,
the NIMs Insurer, the PMI Insurer, the Trust Fund and the
Trustee respecting a breach of the foregoing representations
and warranties. The foregoing shall not limit, however, any
remedies available to the Securities Administrator, the
Trustee, the NIMs Insurer , the PMI Insurer or the Trust Fund
available pursuant to any other agreement related hereto as to
the insurance policy pursuant to which the NIMs Securities are
insured or the PMI insurance policies.
Any cause of action against the Servicer relating to
or arising out of the breach of any representations and
warranties made in Section 3.01 shall accrue upon (i)
discovery of such breach by the Servicer or notice thereof by
the Trustee, the NIMs Insurer or the Securities Administrator
to the Servicer, (ii) failure by the Servicer to cure such
breach within the applicable cure period, and (iii) demand
upon the Servicer by the Trustee, the NIMs Insurer or the
Securities Administrator for compliance with this Agreement.
9. Section 3.03 (Repurchase) is hereby amended by replacing the
penultimate paragraphs of such Section with the following:
A-2
In addition to such repurchase or substitution
obligation, the Company shall indemnify the Purchaser and hold
it harmless against any losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related
costs, judgments, and other costs and expenses resulting from
any claim, demand, defense or assertion based on or grounded
upon, resulting from, a breach of the representations and
warranties contained in this Agreement. It is understood and
agreed that the obligations of the Company set forth in this
Section 3.03 to cure, substitute for or repurchase a defective
Mortgage Loan and to indemnify the Purchaser as provided in
this Section 3.03 constitute the sole remedies of the
Purchaser respecting a breach of the foregoing representations
and warranties.
10. Section 4.01 (Company to Act as Servicer) is hereby amended as follows:
(i) by deleting the first, second and third sentences of
the second paragraph of such section and replacing them with the
following:
Consistent with the terms of this Agreement, the
Company may waive, modify or vary any term of any Mortgage
Loan or consent to the postponement of any such term or in any
manner grant indulgence to any Mortgagor if in the Company's
reasonable and prudent determination such waiver,
modification, postponement or indulgence is not materially
adverse to the certificateholders or the NIMs Insurer and with
written notice of such modification to the NIMs Insurer,
provided, however, that unless the Mortgagor is in default
with respect to the Mortgage Loan or such default is, in the
judgement of the Company, imminent, the Company shall not
permit any modification with respect to any Mortgage Loan that
would change the Mortgage Interest Rate, forgive the payment
of principal or interest, reduce or increase the outstanding
principal balance (except for actual payments of principal) or
change the final maturity date on such Mortgage Loan.
(ii) by adding the following to the end of the second
paragraph of such section:
Promptly after the execution of any assumption, modification,
consolidation or extension of any Mortgage Loan, the Company
shall forward to the Custodian and the NIMs Insurer copies of
any documents evidencing such assumption, modification,
consolidation or extension. Notwithstanding anything to the
contrary contained in this Agreement, the Company shall not
make or permit any modification, waiver or amendment of any
term of any Mortgage Loan that would cause any REMIC created
under the Trust Agreement to fail to qualify as a REMIC or
result in the imposition of any tax under Section 860F(a) or
Section 860G(d) of the Code.
(iii) by adding the following two paragraphs to the end of
such Section:
The Company acknowledges and agrees that the prepayment
penalty to be collected and enforced on each applicable
Mortgage Loan is calculated based on the maximum amount
permitted under the prepayment penalty matrix attached hereto
as Exhibit H (the "Prepayment Penalty Matrix").
Notwithstanding anything to the contrary contained herein, the
Company shall deposit the full amount of any prepayment
penalty that is identified on the Mortgage Loan Schedule and
calculated in accordance with the maximum amount permitted
under the Prepayment Penalty Matrix into the Custodial Account
at the time the related Principal Prepayment is deposited
therein if and to the extent a Mortgage Loan which is
identified on the Mortgage Loan Schedule as having a
prepayment penalty prepays regardless of whether the actual
prepayment penalty is lower
A-3
than described in the Mortgage Loan Schedule and the
Prepayment Penalty Matrix or is not a contractual obligation
of the borrower on the Mortgage Note.
Notwithstanding anything to the contrary elsewhere in this
Agreement, the Servicer shall not agree to any modification or
assumption of a PMI Mortgage Loan or take any other action
with respect to a PMI Mortgage Loan that could result in a
limitation, qualification or denial of coverage under the PMI
Policy with respect to any PMI Mortgage Loan. The Servicer
shall notify the PMI Insurer that the Trustee, on behalf of
the Certificateholders, is the Owner, as that term is defined
in the PMI Policy, of each PMI Mortgage Loan. The Servicer
shall, on behalf of the Trustee, prepare and file on a timely
basis with the PMI Insurer, with a copy to the Securities
Administrator, all claims which may be made under the PMI
Policy with respect to the PMI Mortgage Loans. Consistent with
all rights and obligations hereunder, the Servicer shall take
all actions required under the PMI Policy as a condition to
the payment of any such claim. Any amount received from the
PMI Insurer with respect to any such PMI Mortgage Loan shall
be deposited by the Servicer, no later than two Business Days
following receipt thereof, into the Custodial Account. The
Servicer shall service the PMI Mortgage Loans in accordance
with the PMI Policy which is attached hereto as Exhibit F.
11. Section 4.04 (Establishment of and Deposits to Custodial Account) is
hereby amended as follows: (i) the words "in trust for the Purchaser
and/or subsequent purchasers of Mortgage Loans, and various
Mortgagors-P&I" in the fourth and fifth lines of the first sentence of
the first paragraph shall be replaced by the following: "in trust for
Xxxxxxx Xxxxx Mortgage Investors Mortgage Loan Asset-Backed
Certificates, Series 2002-HE1 Trust," (ii) adding the following
sentence at the end of the first paragraph "Upon request of the
Securities Administrator and within ten (10) days thereof, the Company
shall provide the Securities Administrator with written confirmation of
the existence of such Custodial Account. The Company may transfer the
Custodial Account to a different Qualified Depository from time to time
and upon written notice to the Securities Administrator not less than
ten (10) days prior to the transfer of funds." and (iii) adding the
following phrase at the end of clause (i) before the semicolon ", and
all amounts required to be deposited into the Custodial Account
pursuant to the last three paragraphs of Section 4.01 of this
Agreement."
12. Section 4.05 (Permitted Withdrawals From Custodial Account) is hereby
amended by replacing the last five lines of clause (ii) with the
following:
the Trust Fund; provided however, that in the event
that the Servicer determines in good faith that any
unreimbursed Monthly Advances will not be recoverable from
amounts representing late recoveries of payments of principal
or interest respecting the particular Mortgage Loan as to
which such Monthly Advance was made or from Liquidation
Proceeds or Insurance Proceeds with respect to such Mortgage
Loan, the Servicer may reimburse itself for such amounts from
the Custodial Account, it being understood, in the case of any
such reimbursement, that the Servicer's right thereto shall be
prior to the rights of the Trust Fund;
13. Section 4.06 (Establishment of and Deposits to Escrow Account) shall be
amended by deleting the words "Purchaser and/or subsequent purchasers
of Residential Mortgage Loans, and various Mortgagors-T&I" in the
fourth and fifth lines of the first sentence of the first paragraph,
and replacing it with the following:
"in trust for Xxxxxxx Xxxxx Mortgage Investors Mortgage Loan
Asset-Backed Certificates, Series 2002-HE1 Trust".
A-4
14. Section 4.12 (Maintenance of Fidelity Bond and Errors and Omissions
Insurance) is hereby amended by replacing "Purchaser" with "Securities
Administrator" in the last sentence thereof
15. Section 4.16 (Title, Management and Disposition of REO Property) is
hereby amended by (i) replacing the reference to "one year" in the
seventh line of the second paragraph thereof with "three years", (ii)
adding two new paragraphs after the second paragraph thereof to read as
follows:
In the event that the Trust Fund acquires any REO Property in
connection with a default or imminent default on a Mortgage
Loan, the Servicer shall dispose of such REO Property not
later than the end of the third taxable year after the year of
its acquisition by the Trust Fund unless the Servicer has
applied for and received a grant of extension from the
Internal Revenue Service to the effect that, under the REMIC
Provisions and any relevant proposed legislation and under
applicable state law, the applicable Trust REMIC may hold REO
Property for a longer period without adversely affecting the
REMIC status of such REMIC or causing the imposition of a
federal or state tax upon such REMIC. If the Servicer has
received such an extension, then the Servicer shall continue
to attempt to sell the REO Property for its fair market value
for such period longer than three years as such extension
permits (the "Extended Period"). If the Servicer has not
received such an extension and the Servicer is unable to sell
the REO Property within the period ending 3 months before the
end of such third taxable year after its acquisition by the
Trust Fund or if the Servicer has received such an extension,
and the Servicer is unable to sell the REO Property within the
period ending three months before the close of the Extended
Period, the Servicer shall, before the end of the three year
period or the Extended Period, as applicable, (i) purchase
such REO Property at a price equal to the REO Property's fair
market value or (ii) auction the REO Property to the highest
bidder (which may be the Servicer) in an auction reasonably
designed to produce a fair price prior to the expiration of
the three-year period or the Extended Period, as the case may
be. The Trustee shall sign any document or take any other
action reasonably requested by the Servicer which would enable
the Servicer, on behalf of the Trust Fund, to request such
grant of extension.
Notwithstanding any other provisions of this Agreement, no REO
Property acquired by the Trust Fund shall be rented (or
allowed to continue to be rented) or otherwise used by or on
behalf of the Trust Fund in such a manner or pursuant to any
terms that would: (i) cause such REO Property to fail to
qualify as "foreclosure property" within the meaning of
Section 860G(a)(8) of the Code; or (ii) subject any Trust
REMIC to the imposition of any federal income taxes on the
income earned from such REO Property, including any taxes
imposed by reason of Sections 860F or 860G(c) of the Code,
unless the Servicer has agreed to indemnify and hold harmless
the Trust Fund with respect to the imposition of any such
taxes.
(iii) deleting the first sentence of the third paragraph thereto and
(iv) replacing the words "one" and "sentence" with "three" and
"paragraph", respectively, in the sixth line of the third paragraph
thereto.
16. Section 5.01 (Remittances) is hereby amended by adding the following
after the second paragraph of such Section:
All remittances required to be made to the Securities
Administrator shall be made to the following wire account or
to such other account as may be specified by the Securities
Administrator from time to time:
A-5
Xxxxx Fargo Bank, N.A.
San Francisco, California
ABA# 000-000-000
Account Name: Corporate Trust Clearing
Account Number: 0000000000
Beneficiary: Xxxxx Fargo Bank Minnesota, N.A.
For further credit to: Account Number 00000000
17. Section 5.02 (Statements to Purchaser) is hereby amended in its
entirety to read as follows:
Section 5.02 Statements to Securities Administrator.
Not later than the tenth calendar day of each month,
the Servicer shall furnish to the Securities Administrator an
electronic file providing loan level accounting data for the
period ending on the last Business Day of the preceding month
in the format mutually agreed to between the Servicer and the
Securities Administrator.
Such format shall include the following information
with respect to the PMI Mortgage Loans: the amount of any
claims made under the PMI Policy, the amount of any claims
rejected by the PMI Insurer, the amount of any claims paid by
the PMI Insurer pursuant to the PMI Policy with respect to
principal, the amount of any claims paid by the PMI Insurer
pursuant to the PMI Policy with respect to interest, and the
number and aggregate stated principal balance of the Mortgage
Loans covered by the PMI Policy as of the end of the related
Due Period.
18. Section 5.03 (Monthly Advances by Company) is hereby amended by
replacing the words "Purchaser" with the words "NIMs Insurer" in the
second to last sentence of such Section.
19. Section 6.04 (Annual Statement as to Compliance) is hereby amended by
(i) replacing "on or before May 31, each year beginning in May 31,
2003" with "on or before February 28, each year beginning February 28,
2003" in the first and second lines of such Section and (ii) adding
"Securities Administrator" instead of the word "Purchaser" in the first
line.
20. Section 6.05 (Annual Independent Public Accountants' Servicing Report)
is hereby amended by (i) replacing "On or before May 31, each year
beginning in May 31, 2003" with "On or before February 28, each year
beginning February 28, 2003" in the first line of such Section and (ii)
adding "the Securities Administrator" instead of the words "each
Purchaser" in the third line.
21. Section 6.06 (Rights to Examine Company Records) is hereby amended by
(i) adding ", the Trustee" after the word "designee" in the first line
and (ii) replacing the words "The Purchaser" with "The examining party"
in the last sentence of such Section.
22. Section 8.01 (Indemnification; Third Party Claims) is hereby amended in
its entirety to read as follows:
The Servicer shall indemnify the Seller, the Trust Fund, the
Trustee, the Depositor and the Securities Administrator and
hold each of them harmless against any and all claims, losses,
damages, penalties, fines, forfeitures, reasonable and
necessary legal fees and related costs, judgements, and any
other costs, fees and expenses that any of such parties may
sustain in any way related to the failure of the Servicer to
perform its duties and service the Mortgage Loans in strict
compliance with the terms of this Agreement. The Servicer
immediately shall notify the Seller, the NIMs Insurer, the
PMI Insurer, the
A-6
Depositor, the Securities Administrator and the Trustee or any
other relevant party if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans, assume (with
the prior written consent of the indemnified party, which
consent shall not be unreasonably withheld or delayed) the
defense of any such claim and pay all expenses in connection
therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgement or decree which may be
entered against it or any of such parties in respect of such
claim. The Servicer shall follow any written instructions
received from the Trustee in connection with such claim. The
Servicer shall provide the Trustee and the Securities
Administrator with a written report of all expenses and
advances incurred by the Servicer pursuant to this Section
8.01, and the Securities Administrator from the assets of the
Trust Fund promptly shall reimburse the Servicer for all
amounts advanced by it pursuant to the preceding sentence
except when the claim is in any way relates to the failure of
the Servicer to service and administer the Mortgage Loans in
strict compliance with the terms of this Agreement or the
gross negligence, bad faith or willful misconduct of this
Servicer.
23. Section 8.04 is hereby amended as follows:
(i) adding the following phrase to the end of the first
paragraph of such Section 8.04: ", and without the prior
written consent of the NIMs Insurer."
(ii) restating the second and third paragraphs as follows:
The Company shall not resign from the obligations and
duties hereby imposed on it except by mutual consent of the
Company, the Trustee, the Securities Administrator, the PMI
Insurer and the NIMs Insurer or upon the determination that
its duties hereunder are no longer permissible under
applicable law and such incapacity cannot be cured by the
Company. Any such determination permitting the resignation of
the Company shall be evidenced by an Opinion of Counsel to
such effect delivered to the Trustee, the Securities
Administrator and the NIMs Insurer which Opinion of Counsel
shall be in form and substance acceptable to the Trustee, the
Securities Administrator and the NIMs Insurer. No such
resignation shall become effective until a successor
acceptable to the NIMs Insurer shall have assumed the
Company's responsibilities and obligations hereunder in the
manner provided in Section 12.01.
Without in any way limiting the generality of this
Section 8.04, in the event that the Company either shall
assign this Agreement or the servicing responsibilities
hereunder or delegate its duties hereunder or any portion
thereof or sell or otherwise dispose of all or substantially
all of its property or assets, without the prior written
consent of the Trustee, the Securities Administrator, the PMI
Insurer and the NIMs Insurer, then the Trustee or the
Securities Administrator (with the prior written consent of
the NIMs Insurer) or the NIMs Insurer, shall have the right to
terminate the Company as Servicer under this Agreement upon
notice given as set forth in Section 10.01, without any
payment of any penalty or damages and without any liability
whatsoever to the Company or any third party.
24. Section 10.01 (Events of Default) is hereby amended as follows:
(a) each of the Securities Administrator, the NIMs
Insurer, the Depositor or the holders of certificates
evidencing greater than 50% of each class of
Certificates shall also have the right to give notice
of default in such Section;
A-7
(b) amending subclause (vii) as follows: "the Company at
any time is neither a Xxxxxx Xxx nor Xxxxxxx Mac
approved servicer, and the Trustee has not terminated
the rights and obligations of the Company under this
Agreement and replaced the Servicer with a Xxxxxx Mae
or Xxxxxxx Mac approved servicer within 30 days of
the absence of such approval; or"; and
(c) replacing the last paragraph with the following
paragraph:
If an Event of Default shall occur with
respect to the Servicer, then, and in each and every
such case, so long as such Event of Default shall not
have been remedied, the Trustee may, or at the
direction of the NIMs Insurer or the
certificateholders evidencing greater than 50% of the
Voting Rights evidenced by the Certificates (with the
written consent of the NIMs Insurer, except after an
NIMs Insurer Default), shall, by notice in writing to
the Servicer (with a copy to each Rating Agency),
terminate all of the rights and obligations of the
Servicer under this Agreement and in and to the
Mortgage Loans and the proceeds thereof, other than
its rights as a certificateholder hereunder. On or
after the receipt by the Servicer of such written
notice, all authority and power of the Servicer
hereunder, whether with respect to the Mortgage Loans
or otherwise, shall pass to and be vested in the
Securities Administrator. The Securities
Administrator is hereby authorized and empowered to
execute and deliver, on behalf of the 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 or
assignment of the Mortgage Loans and related
documents, or otherwise. Unless expressly provided in
such written notice, no such termination shall affect
any obligation of the Servicer to pay amounts owed
pursuant to this Agreement. The Servicer agrees to
cooperate with the Trustee in effecting the
termination of the Servicer's responsibilities and
rights hereunder. The Servicer and the Trustee shall
promptly notify the Rating Agencies and the NIMs
Insurer of the occurrence of an Event of Default or
an event that, with notice, passage of time, other
action or any combination of the foregoing would be
an Event of Default, such notice to be provided in
any event within two Business Days of such
occurrence.
25. Section 10.02 (Waiver of Defaults) is hereby amended by changing the
reference to "Purchaser" to "the Trustee, with the prior written
consent of the NIMs Insurer."
26. Section 11.01 (Termination) is hereby amended by restating subclause
(ii) thereof to read as below and adding the following sentence after
the first sentence of Section 11.01:
(ii) mutual consent of the Servicer and the Trustee in
writing, provided such termination is also acceptable
to the Depositor and the Rating Agencies.
At the time of any termination of the Servicer
pursuant to Section 11.01, the Servicer shall be entitled to
all accrued and unpaid Servicing Fees and unreimbursed
Servicing Advances and Monthly Advances; provided, however, in
the event of an event of default under Section 10.01 or
termination with cause under Section 11.02 hereof, such
unreimbursed amounts shall not be reimbursed to the Servicer
until such amounts are received by the Trust Fund from the
related Mortgage Loans.
A-8
27. Section 11.02 (Termination Without Cause) is hereby amended by (i)
replacing the first reference to "Purchaser" with "Xxxxxxx Xxxxx
Mortgage Capital Inc. (with the prior consent of the Trustee and the
NIMs Insurer)" and by replacing all other references to "Purchaser"
with "Xxxxxxx Xxxxx Mortgage Capital Inc" and (ii) adding the following
sentence at the end of such Section "The termination of the Company
shall not be effective until a successor servicer acceptable to the
NIMs Insurer shall have assumed the responsibilities, duties and
obligations of the Company; provided, further, that no successor
servicer shall be appointed unless such successor shall be qualified to
service mortgage loans on behalf of Xxxxxx Xxx or Xxxxxxx Mac and the
appointment of such successor servicer shall not result in a
qualification, withdrawal or downgrade of the then-current rating of
any of the Certificates by an Rating Agency."
28. Section 12.01 (Successor to Company) is hereby amended in its entirety
to read as follows:
Simultaneously with the termination of the Servicer's
responsibilities and duties under this Agreement pursuant to
Sections 8.04, 10.01, 11.01(ii) or 11.02, the Securities
Administrator shall, in accordance with the provisions of the
Trust Agreement (i) succeed to and assume all of the
Servicer's responsibilities, rights, duties and obligations
under this Agreement, or (ii) appoint a successor meeting the
eligibility requirements of this Agreement, and which shall
succeed to all rights and assume all of the responsibilities,
duties and liabilities of the Servicer under this Agreement
with the termination of the Servicer's responsibilities,
duties and liabilities under this Agreement. After the Company
receives a notice of termination, the Securities Administrator
may, if it shall be unwilling to act as Servicer, or shall, if
it is unable to so act or if it is prohibited by law from
making advances with respect to delinquent Mortgage Loans, or
if the NIMs Insurer so requests in writing to the Securities
Administrator, promptly appoint, or petition a court of
competent jurisdiction to appoint, an established mortgage
loan servicing institution acceptable to each Rating Agency,
having a net worth of not less than $15,000,000 and reasonably
acceptable to the NIMs Insurer, as the successor to the
Company under this Agreement in the assumption of all or any
part of the responsibilities, duties and obligations of the
Company under this Agreement. Any successor to the Company
that is not at that time a Servicer of other mortgage loans
for the Trust Fund shall be subject to the approval of the
Trustee, the NIMs Insurer, the Seller and each Rating Agency
(as such term is defined in the Trust Agreement). Unless the
successor servicer is at that time a servicer of other
mortgage loans for the Trust Fund, each Rating Agency must
deliver to the Trustee and the NIMs Insurer a letter to the
effect that such transfer of servicing will not result in a
qualification, withdrawal or downgrade of the then-current
rating of any of the Certificates. In connection with such
appointment and assumption, the Trustee or the Seller, as
applicable, may make such arrangements for the compensation of
such successor out of payments on the Mortgage Loans as it and
such successor shall agree; provided, however, that no such
compensation shall be in excess of that permitted the Servicer
under this Agreement. In the event that the Servicer's duties,
responsibilities and liabilities under this Agreement should
be terminated pursuant to the aforementioned sections, the
Servicer shall discharge such duties and responsibilities
during the period from the date it acquires knowledge of such
termination until the effective date thereof with the same
degree of diligence and prudence which it is obligated to
exercise under this Agreement, and shall take no action
whatsoever that might impair or prejudice the rights or
financial condition of its successor. The resignation or
removal of the Servicer pursuant to the aforementioned
sections shall not become effective until a successor
reasonably acceptable to the NIMs Insurer shall be appointed
pursuant to this Section 12.01 and shall in no event relieve
the Servicer of the representations and warranties made
pursuant to Sections 3.01 and 3.02
A-9
and the remedies available to the Trust Fund under Section
3.03 shall be applicable to the Servicer notwithstanding any
such resignation or termination of the Servicer, or the
termination of this Agreement.
Within a reasonable period of time, but in no event
longer than 30 days of the appointment of a successor entity,
the Servicer shall prepare, execute and deliver to the
successor entity any and all documents and other instruments,
place in such successor's possession all Servicing Files, and
do or cause to be done all other acts or things necessary or
appropriate to effect the purposes of such notice of
termination. The Servicer shall cooperate with the Securities
Administrator, the Trustee and such successor, as applicable,
in effecting the termination of the Servicer's
responsibilities and rights hereunder and the transfer of
servicing responsibilities to the successor Servicer,
including without limitation, the transfer to such successor
for administration by it of all cash amounts which shall at
the time be credited by the Servicer to the Account or any
Escrow Account or thereafter received with respect to the
Mortgage Loans.
Any successor appointed as provided herein shall
execute, acknowledge and deliver to the Trustee and the
Servicer an instrument (i) accepting such appointment, wherein
the successor shall make an assumption of the due and punctual
performance and observance of each covenant and condition to
be performed and observed by the Servicer under this
Agreement, whereupon such successor shall become fully vested
with all the rights, powers, duties, responsibilities,
obligations and liabilities of the Servicer, with like effect
as if originally named as a party to this Agreement. Any
termination or resignation of the Servicer or termination of
this Agreement pursuant to Sections 8.04, 10.01, 11.01 or
11.02 shall not affect any claims that the Trustee may have
against the Servicer arising out of the Servicer's actions or
failure to act prior to any such termination or resignation.
The Servicer shall deliver, within three (3) Business
Days of the appointment of a successor Servicer, the funds in
the Custodial Account and Escrow Account and all Collateral
Files, Credit Files and related documents and statements held
by it hereunder to the successor Servicer and the Servicer
shall account for all funds and shall execute and deliver such
instruments and do such other things as may reasonably be
required to more fully and definitively vest in the successor
all such rights, powers, duties, responsibilities, obligations
and liabilities of the Servicer.
Upon a successor's acceptance of appointment as such,
the Servicer shall notify the Trustee and the NIMs Insurer of
such appointment in accordance with the notice procedures set
forth herein.
Except as otherwise provided in this Agreement, all
reasonable costs and expenses incurred in connection with any
transfer of servicing hereunder (whether as a result of
termination or removal of the Servicer or resignation of the
Servicer or otherwise), including, without limitation, the
costs and expenses of the Securities Administrator or any
other Person in appointing a successor servicer, or of the
Securities Administrator in assuming the responsibilities of
the Servicer hereunder, or of transferring the Servicing Files
and the other necessary data to the successor servicer shall
be paid by the terminated, removed or resigning Servicer from
its own funds without reimbursement.
29. Section 12.02 (Amendment) is hereby amended by replacing the words "by
the Company and by written agreement signed by the Company and the
Purchaser" with "by written agreement by the Servicer and the Seller,
with the written consent of the Trustee and the NIMs Insurer; provided,
A-10
either (i) the party requesting the amendment provide, at its sole
expense, an opinion of counsel that such amendment will not have a
material adverse affect on the Trust Fund or (ii) each Rating Agency
provide notice that such amendment would not result in a withdraw or
reduction of the rating of the Certificates by such Rating Agency."
30. Section 12.04 (Duration of Agreement) is hereby amended by deleting the
last sentence thereof.
31. Section 12.10 (Assignment by Purchaser) is hereby deleted in its
entirety.
32. Section 12.11 (Solicitation of Mortgagor) is hereby amended by
replacing the words "the Purchaser" with "Xxxxxxx Xxxxx Mortgage
Capital Inc." in each instance.
33. A new Section 12.12 (Intended Third Party Beneficiaries) is hereby
added to read as follows:
Notwithstanding any provision herein to the contrary,
the parties to this Agreement agree that it is appropriate, in
furtherance of the intent of such parties as set forth herein,
that the Securities Administrator and the NIMs Insurer receive
the benefit of the provisions of this Agreement as intended
third party beneficiaries of this Agreement to the extent of
such provisions; provided, however, that to the extent a NIMs
Insurer providing insurance for any NIMs Security is not a
party to the NIMs Transaction, any and all provisions herein
relating to the NIMs Insurer shall be disregarded. The Company
shall have the same obligations to the Securities
Administrator and the NIMs Insurer as if they were parties to
this Agreement, and the Securities Administrator and the NIMs
Insurer shall have the same rights and remedies to enforce the
provisions of this Agreement as if they were parties to this
Agreement. Notwithstanding the foregoing, all rights and
obligations of the Securities Administrator and the NIMs
Insurer hereunder (other than the right to indemnification and
reimbursement) shall terminate upon termination of the Trust
Agreement and of the Trust Fund pursuant to the Trust
Agreement.
34. A new Section 12.13 (Officer's Certificate) is hereby added to read as
follows:
(a) For so long as there is a securities administrator
(the "Securities Administrator") in a securitization transaction with
respect to which the Depositor files a Xxxxxxxx-Xxxxx certification
directly with the SEC (a "Transaction"), by February 28th of each year
(of if not a Business Day, the immediately preceding Business Day), or
in connection with any additional such certifications directly filed by
the Depositor upon thirty (30) days written request, an officer of the
Servicer shall execute and deliver an Officer's Certificate in the form
of Exhibit G attached hereto, signed by the senior officer in charge of
servicing of the Servicer or any officer to whom that officer reports,
to the Securities Administrator and the Depositor for the benefit of
such Securities Administrator and such Depositor and their respective
officers, directors and affiliates, certifying as to the following
matters:
(1) I have reviewed the information required to be
delivered to the Securities Administrator pursuant to the
Agreement (the "Servicing Information").
(2) Based on my knowledge, the information relating
to the Mortgage Loans submitted by the Servicer in its monthly
reporting packages delivered to the Securities Administrator
which is contained in the reports on Form 8-K and the annual
report on Form 10-K with respect to the Transaction, taken as
a whole, does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the
A-11
statements made, in light of the circumstances under which
such statements were made, not misleading as of the date of
this certification;
(3) Based on my knowledge, the Servicing Information
required to be provided to the Securities Administrator by the
Servicer under this Agreement has been provided to the
Securities Administrator;
(4) I am responsible for reviewing the activities
performed by the Servicer under this Agreement and based upon
the review required hereunder, and except as disclosed in the
Annual Statement of Compliance, the Annual Independent
Certified Public Accountant's Servicing Report and all
servicing reports, officer's certificates and other
information relating to the servicing of the Mortgage Loans
submitted to the Securities Administrator, the Servicer has,
as of this certification fulfilled its obligations under this
Agreement; and
(5) I have disclosed to the Securities Administrator
all significant deficiencies relating to the Servicer's
compliance with the minimum servicing standards in accordance
with a review conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard
as set forth in this Agreement.
(b) The Servicer shall indemnify and hold harmless the
Securities Administrator and the Depositor and their respective
officers, directors, agents and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable legal fees and
related costs, judgments and other costs and expenses arising out of or
based upon a breach by the Servicer or any of its officers, directors,
agents or affiliates of its obligations under this Section 12.13 any
material misstatement or omission in the Officer's Certificate required
under this Section or the negligence, bad faith or willful misconduct
of the Servicer in connection therewith. If the indemnification
provided for herein is unavailable or insufficient to hold harmless the
Securities Administrator and the Depositor, then the Servicer agrees
that it shall contribute to the amount paid or payable by the
Securities Administrator and the Depositor as a result of the losses,
claims, damages or liabilities of the Securities Administrator and the
Depositor in such proportion as is appropriate to reflect the relative
fault of the Securities Administrator and the Depositor on the one hand
and the Servicer on the other in connection with a breach of the
Servicer's obligations under this Section 12.13, any material
misstatement or omission in the Officer's Certificate required under
this Section or the Servicer's negligence, bad faith or willful
misconduct in connection therewith.
35. Item (8) in Exhibit B is hereby added to read as follows:
(8) The original policy of title insurance, including riders and
endorsements thereto, or if the policy has not yet been issued, a
written commitment letter or interim binder or preliminary report of
tile issued by the title insurance or escrow company.
A-12
EXHIBIT B
Servicing Agreement
[See Exhibit #99.5]
B-1
EXHIBIT C
Schedule of Serviced Mortgage Loans
[INTENTIONALLY OMITTED]
C-1
EXHIBIT D
Form of Opinion of Counsel
December 6, 2002
Xxxxxxx Xxxxx & Co.
000 Xxxxx Xxxxxx
4 World Financial Center, 10th Floor
New York, New York 10080
Xxxxxxx Xxxxx Investors, Inc.
000 Xxxxx Xxxxxx
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
RE: Xxxxxxx Xxxxx Mortgage Investors Mortgage Loan Asset-Backed
Certificates, Series 2002-HE1 Trust
Dear Sir/Madam:
I am [General Counsel] of [Xxxxx Fargo Home Mortgage, Inc. or Firm Name] and
have acted as counsel to Xxxxx Fargo Home Mortgage, Inc. (the "Company"), with
respect to certain matters in connection with the securitization of Mortgage
Loans by Xxxxxxx Xxxxx Investors, Inc., that certain Reconstituted Servicing
Agreement, dated as of November 1, 2002 (the "Agreement"), by and among the
Company, Xxxxxxx Xxxxx Mortgage Capital Inc. and HSBC Bank USA.
To the extent I have deemed necessary and proper, I have relied upon the
representations and warranties of the Company contained in the Agreement. I have
assumed the authenticity of all documents submitted to me as originals, the
genuineness of all signatures, the legal capacity of natural persons and the
conformity to the originals of all documents.
Based upon the foregoing, it is my opinion that:
1. The Company is a corporation duly organized, validly existing and in
good standing under the laws of the state of [Name of State].
2. The Company has the power to engage in the transactions contemplated by
the Agreement and all requisite power, authority and legal right to
execute and deliver the Agreement, and to perform and observe the terms
and conditions of the Agreement.
3. Each person who, as an officer or attorney-in-fact of the Company,
signed (a) the Agreement, and (b) any other document delivered prior
hereto or on the date hereof in connection with the sale, servicing and
securitization of the Mortgage Loans was, at the respective times of
such signing and delivery, and is, as of the date hereof, duly elected
or appointed, qualified and acting and as such officer or
attorney-in-fact, and the signatures of such persons appearing on such
documents are their genuine signatures
4. The Agreement has been duly authorized, executed and delivered by the
Company and is a legal, valid and binding agreement enforceable in
accordance with its terms, subject to bankruptcy laws and other similar
laws of general application affecting rights of creditors and subject
to the application of the rules of equity, including those respecting
the availability of specific performance.
5. Either (a) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the
Agreement, or the consummation of the transactions contemplated by the
Agreement; or (b) any required consent, approval, authorization or
order has been obtained by the Company.
6. Neither the consummation of the transactions contemplated by, nor the
fulfillment of the terms of the Agreement, will conflict with or
results in or will result in a breach of or constitutes or will
constitute a default under the charter or by-laws of the Company, the
terms of any indenture or other agreement or instrument to which the
Company is a party or by which it is bound or to which it is subject,
or violates any statute or order, rule, regulations, writ, injunction
or decree of any court, governmental authority or regulatory body to
which the Company is subject or by which it is bound.
This opinion is given to you for your sole benefit, and no other person or
entity is entitled to rely hereon except that the purchaser or purchasers to
which you initially and directly resell the Mortgage Loans may rely on this
opinion as if it were addressed to them as of its date.
Sincerely,
D-1
EXHIBIT E
OFFICER'S CERTIFICATE
OF
[INSERT COMPANY NAME]
The undersigned Officer of Xxxxx Fargo Home Mortgage, Inc. (the "Company")
hereby certifies as follows:
1. Attached hereto as Exhibit A is a true and correct copy of certain
resolutions duly adopted by the Board of Directors of the Company, which
resolutions have not been in any way amended, annulled, rescinded or
revoked and are now in full force and effect.
2. Attached hereto as Exhibit B is a true and complete copy of the Certificate
of Incorporation of the Company, as amended, as filed with the Secretary of
State of the State of [INSERT STATE]. Such Certificate of Incorporation has
not been amended and is in full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a true and complete copy of the By-Laws of
the Company Such By-Laws have not been amended or revoked and are in full
force and effect on the date hereof.
4. Attached hereto as Exhibit D is a true and correct copy of the Certificate
of the Secretary of State of the State of [INSERT STATE] as to the good
standing of the Company.
5. Either (i) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery and
performance by the Company of or compliance by the Company with the
Reconstituted Servicing Agreement (the "Agreement"), dated as of November
1, 2002 among the Company, as servicer, Xxxxxxx Xxxxx Mortgage Capital Inc.
and HSBC Bank USA, or the transactions contemplated by the Agreement; or
(ii) any required consent, approval, authorization or order has been
obtained by the Company.
6. Neither the consummation of the transactions contemplated by, nor the
fulfillment of the terms of the Agreement conflicts or will conflict with
or results or will result in a breach of or constitutes or will constitute
a default under the Certificate of Incorporation or By-Laws of the Company,
the terms of any indenture or other agreement or instrument to which the
Company is a party or by which it is found or to which it is subject, or
any statute or order, rule, regulations, writ, injunction or decree of any
court, governmental authority or regulatory body to which the Company is
subject or by which it is bound.
E-1
7. There is no action, suit, proceeding or investigation pending or, to the
best of my knowledge, threatened against the Company which, in my judgment,
either in any one instance or in the aggregate, may result in any material
adverse change in the business, operations, financial condition, properties
or assets of the Company or in any material impairment of the right or
ability of the Company to carry on its business substantially as now
conducted or in any material liability on the part of the Company or which
would draw into question the validity of the Agreement, or of any action
taken or to be taken in connections with the transactions contemplated
hereby, or which would be likely to impair materially the ability of the
Company to perform under the terms of the Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand this 6th day of December, 2002
________________________________
Name:
Title:
E-2
EXHIBIT F
PMI POLICY
[INTENTIONALLY OMITTED]
E-3
EXHIBIT G
SEC CERTIFICATION
Xxxxxxx Xxxxx Mortgage Capital Inc.
000 Xxxxx Xxxxxx
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxx Fargo Bank Minnesota, N.A.
0000 Xxx Xxxxxxxxx Xxxx, 00xx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Client Manager - MLMI Series 2002-HE1
Re: Xxxxxxx Xxxxx Mortgage Investors Trust, Mortgage Loan Asset-Backed
Certificates, Series 2002-HE1
Reference is made to the Reconstituted Servicing Agreement, dated as of November
1, 2002 (the "Agreement"), by and among Xxxxxxx Xxxxx Mortgage Investors, Inc.,
as depositor, Xxxxx Fargo Home Mortgage, Inc., as servicer (the "Servicer") and
HSBC Bank USA, as trustee. I, [identify the certifying individual], a [title] of
the Servicer hereby certify to the Securities Administrator and the Depositor,
and its officers, directors and affiliates, and with the knowledge and intent
that they will rely upon this certification, that:
1. I have reviewed the information required to be delivered to the Securities
Administrator pursuant to the Servicing Agreement (the "Servicing
Information").
2. Based on my knowledge, the information relating to the Mortgage Loans
submitted by the Servicer in its monthly reporting packages delivered to
the Securities Administrator which is contained in the reports on Form 8-K
and the annual report on Form 10-K with respect to the Transaction, taken
as a whole, does 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 as of the date of this certification;
3. Based on my knowledge, the Servicing Information required to be provided to
the Securities Administrator by the Servicer under this Agreement has been
provided to the Securities Administrator;
4. I am responsible for reviewing the activities performed by the Servicer
under this Agreement and based upon the review required hereunder, and
except as disclosed in the Annual Statement of Compliance, the Annual
Independent Certified Public Accountant's Servicing Report and all
servicing reports, officer's certificates and other information relating to
the servicing of the Mortgage Loans submitted to the Securities
Administrator by the Servicer, the Servicer has, as of this certification
fulfilled its obligations under this Agreement; and
G-1
5. I have disclosed to the Securities Administrator all significant
deficiencies relating to the Servicer's compliance with the minimum
servicing standards in accordance with a review conducted in compliance
with the Uniform Single Attestation Program for Mortgage Bankers or similar
standard as set forth in this Agreement.
Date:
Xxxxx Fargo Home Mortgage, Inc., as Servicer
By: ____________________________
Name: ____________________________
Title: ____________________________
G-2
EXHIBIT H
PREPAYMENT PENALTY MATRIX
[INTENTIONALLY OMITTED]
G-3
