OMNIBUS AMENDMENT TO POOLING AND SERVICING AGREEMENTS
EXHIBIT 4.2
OMNIBUS AMENDMENT
TO
POOLING AND SERVICING AGREEMENTS
This OMNIBUS AMENDMENT TO POOLING AND SERVICING AGREEMENTS, dated as
of August 23, 2007 ("Omnibus Amendment"), among XXXXXX XXXXXXX ABS CAPITAL I
INC., a Delaware corporation ("MSAC"), DECISION ONE MORTGAGE COMPANY, LLC, a
North Carolina limited liability company ("Decision One"), WMC MORTGAGE CORP, a
California corporation ("WMC"), NC CAPITAL CORPORATION, a California Corporation
("NC Capital"), XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking
association ("Xxxxx Fargo"), JPMORGAN CHASE BANK, NATIONAL ASSOCIATION, a
national banking association, successor in interest to Chase Manhattan Mortgage
Corporation, a New Jersey corporation, and successor in interest to Chase Home
Finance LLC, a Delaware limited liability company ("JPMorgan"), COUNTRYWIDE HOME
LOANS SERVICING LP, a Texas limited partnership ("Countrywide Servicing"),
BARCLAYS CAPITAL REAL ESTATE INC. d/b/a HomEq Servicing, a Delaware corporation,
successor in interest to HomEq Servicing Corporation, a New Jersey corporation
("HomEq"), SAXON MORTGAGE SERVICES, INC., a Texas corporation ("Saxon"), LASALLE
BANK NATIONAL ASSOCIATION, a national banking association ("LaSalle"), and
DEUTSCHE BANK NATIONAL TRUST COMPANY, a national banking association ("Deutsche
Bank"), amends each of the Pooling and Servicing Agreements identified on
Schedule I attached hereto (each a "Pooling and Servicing Agreement" and
collectively, the "Pooling and Servicing Agreements").
RECITALS
WHEREAS, the parties hereto have entered into each of the Pooling
and Servicing Agreements for which their name appears on Schedule I attached
hereto, in the capacities listed opposite their name on Schedule I attached
hereto;
WHEREAS, each of the parties to this Omnibus Amendment desires to
modify each of the Pooling and Servicing Agreements to which they are a party to
as set forth in this Omnibus Amendment;
NOW, THEREFORE, in consideration of the promises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Capitalized but undefined terms used herein have
the respective meanings given them in the related Pooling and Servicing
Agreement.
2. Amendments.
(a) Section 3.01(c) of each Pooling and Servicing Agreement is
hereby deleted in its entirety and replaced with the following:
"Notwithstanding anything in this Agreement to the contrary, a
Servicer may not make any future advances with respect to a
Mortgage Loan (except as provided in Section 4.01 and except
for Servicing Advances) and none of the Servicers shall (i)
permit any modification with respect to any Mortgage Loan that
would change the Mortgage Rate, reduce or increase the
principal balance (except for reductions resulting from actual
payments of principal) or change the final maturity date on
such Mortgage Loan (except for a reduction of interest
payments resulting from the application of the Servicemembers
Civil Relief Act or any similar state statutes) or (ii) permit
any modification, waiver or amendment of any term of any
Mortgage Loan that would both (A) effect an exchange or
reissuance of such Mortgage Loan under Section 1001 of the
Code (or final, temporary or proposed Treasury regulations
promulgated thereunder) and (B) cause any Trust REMIC to fail
to qualify as a REMIC under the Code or the imposition of any
tax on "prohibited transactions" or "contributions after the
startup date" under the REMIC Provisions, (iii) except as
provided in Section 3.07(a), waive any Prepayment Charges, or
(iv) accept payment from the related Mortgagor of an amount
less than the unpaid principal balance of such Mortgage Loan
in final satisfaction thereof; provided, however, that the
applicable Servicer may take any action set forth in clauses
(i) through (iv) with respect to any Mortgage Loan in default
or, which in the judgment of such Servicer, a default is
reasonably foreseeable, and only to the extent such Servicer
determines that such action is not materially adverse to the
interests of the Certificateholders (taking into account any
estimated Realized Loss that might result absent such
action)."
(b) The fourth sentence of Section 3.07(a) of each Pooling and
Servicing Agreement (or the fifth sentence of Section 3.07(a) with respect to
the Pooling and Servicing Agreements listed as number 5 in the attached Schedule
I) is hereby deleted and replaced by the following:
"Notwithstanding anything in this Agreement to the contrary, a
Servicer may waive, or permit a Subservicer to waive, in whole
or in part, a Prepayment Charge only under the following
circumstances: (i) such waiver relates to a default or a
reasonably foreseeable default and would, in the reasonable
judgment of such Servicer, maximize recovery of total proceeds
taking into account the value of such Prepayment Charge and
the related Mortgage Loan; provided, however, that the
applicable Servicer or Subservicer may (and with respect to
any Group I Mortgage Loan shall) waive such Prepayment Charge
if the Mortgage Loan is accelerated or paid-off in connection
with the workout of a delinquent Mortgage Loan or due to the
related Mortgagor's default, notwithstanding that the terms of
the Mortgage Loan or federal or state law might permit the
imposition of such Prepayment Charge, (ii) such Prepayment
Charge is not permitted to be collected by applicable federal,
state or local law or regulation or (iii) the collection of
such Prepayment Charge would be considered "predatory"
pursuant to written guidance published or issued by any
applicable federal, state or local regulatory authority acting
in its official capacity and having jurisdiction over such
matters."
provided, however, that the provision in italics in this Section 2(b) shall be
deemed to apply only with respect to those Pooling and Servicing Agreements for
which the term "Group I Mortgage Loan" is defined therein.
(c) References to "a Servicer," "none of the Servicers," "the
applicable Servicer" or "such Servicer" in Section 2(a) and (b) of this Omnibus
Amendment shall be deemed to read "the Servicer" with respect to any Pooling and
Servicing Agreement for which only one party is listed as servicer on Schedule I
attached hereto.
3. Ratification of Agreement. Except as modified and expressly
amended by this Omnibus Amendment, each Pooling and Servicing Agreement is in
all respects ratified and confirmed, and all the terms, provisions and
conditions thereof shall be and remain in full force and effect.
4. Counterparts. This Omnibus Amendment may be executed by one or
more of the parties hereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument.
5. Governing Law. THIS OMNIBUS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Omnibus
Amendment to be duly executed and delivered as of the day and year first above
written.
XXXXXX XXXXXXX ABS CAPITAL I INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY
By: /s/ Xxxxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Signer
By: /s/ Xxx Xxxxx
-----------------------------------
Name: Xxx Xxxxx
Title: Authorized Signer
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, in its capacity as
servicer
By: /s/ Xxxxxx XxXxxxxx
-----------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, in its capacity as
custodian
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, in its capacity as
trustee
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS SERVICING LP
By: /s/ Xxxx Xxxxxx
-----------------------------------
Name: Xxxx Xxxxxx
Title: 1st Vice President
LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BARCLAYS CAPITAL REAL ESTATE INC.
D/B/A HOMEQ SERVICING
By: /s/ Xxxxxx Xxxx
-----------------------------------
Name: Xxxxxx Xxxx
Title: Executive Vice President
SAXON MORTGAGE SERVICES, INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Executive Officer and
President
DECISION ONE MORTGAGE COMPANY, LLC
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President Secondary
Markets
WMC MORTGAGE CORP.
By: /s/ Xxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxx
Title: Senior Vice President
SCHEDULE I
POOLING AND SERVICING AGREEMENTS
Date of Pooling and
Title of Pooling and Servicing Agreement Servicing Agreement Parties Capacity(ies)
------------------------------------------------ ------------------- --------------------- -----------------
1. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2007-NC1 January 1, 2007 MSAC Depositor
Countrywide Servicing Servicer
Saxon Servicer
NC Capital Responsible Party
DB Trustee
2. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2006-NC5 November 1, 2006 MSAC Depositor
Countrywide Servicing Servicer
NC Capital Responsible Party
DB Trustee
3. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2006-HE7 October 1, 2006 MSAC Depositor
Countrywide Servicing Servicer
NC Capital Responsible Party
WMC Responsible Party
Decision One Responsible Party
DB Trustee
Xxxxx Fargo Custodian
LaSalle Custodian
4. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2006-HE6 September 1, 2006 MSAC Depositor
Countrywide Servicing Servicer
Xxxxx Fargo Servicer
Custodian
NC Capital Responsible Party
Decision One Responsible Party
WMC Responsible Party
LaSalle Custodian
DB Trustee
5. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2006-NC4 June 1, 2006 MSAC Depositor
Xxxxx Fargo Servicer
NC Capital Responsible Party
DB Trustee
6. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2006-HE5 June 1, 2006 MSAC Depositor
Countrywide Servicing Servicer
Xxxxx Fargo Servicer
Custodian
HomEq Servicer
NC Capital Responsible Party
WMC Responsible Party
Decision One Responsible Party
DB Trustee
LaSalle Custodian
7. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2006-HE4 June 1, 2006 MSAC Depositor
Xxxxx Fargo Servicer
Custodian
NC Capital Responsible Party
WMC Responsible Party
Decision One Responsible Party
DB Trustee
LaSalle Custodian
8. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2006-HE3 May 1, 2006 MSAC Depositor
Xxxxx Fargo Servicer
Custodian
HomEq Servicer
NC Capital Responsible Party
WMC Responsible Party
Decision One Responsible Party
DB Trustee
LaSalle Custodian
9. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2006-NC1 January 1, 2006 MSAC Depositor
HomEq Servicer
JPMorgan Servicer
NC Capital Responsible Party
DB Trustee
10. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2005-HE5 October 1, 2005 MSAC Depositor
Countrywide Servicing Servicer
HomEq Servicer
JPMorgan Servicer
NC Capital Responsible Party
Decision One Responsible Party
WMC Responsible Party
DB Custodian
LaSalle Custodian
Xxxxx Fargo Custodian
Trustee
11. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2005-NC2 April 1, 2005 MSAC Depositor
Countrywide Servicing Servicer
HomEq Servicer
NC Capital Responsible Party
DB Trustee
12. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2005-NC1 February 1, 2005 MSAC Depositor
HomEq Servicer
JPMorgan Servicer
NC Capital Responsible Party
DB Trustee
13. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2004-NC November 1, 2004 MSAC Depositor
JPMorgan Servicer
Countrywide Servicing Servicer
NC Capital Responsible Party
DB Trustee
14. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2004-NC7 August 1, 2004 MSAC Depositor
JPMorgan Servicer
HomEq Servicer
NC Capital Responsible Party
DB Trustee
15. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2004-NC6 July 1, 2004 MSAC Depositor
JPMorgan Servicer
HomEq Servicer
NC Capital Responsible Party
DB Trustee
16. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2004-NC5 June 1, 2004 MSAC Depositor
Countrywide Servicing Servicer
NC Capital Responsible Party
DB Trustee
17. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2004-NC4 May 1, 2004 MSAC Depositor
HomEq Servicer
NC Capital Responsible Party
DB Trustee
18. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2004-NC3 April 1, 2004 MSAC Depositor
Countrywide Servicing Servicer
NC Capital Responsible Party
DB Trustee
19. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2004-NC2 February 1, 2004 MSAC Depositor
Countrywide Servicing Servicer
NC Capital Responsible Party
DB Trustee
20. Xxxxxx Xxxxxxx ABS Capital I Inc. Trust 2004-NC1 January 1, 2004 MSAC Depositor
HomEq Servicer
NC Capital Responsible Party
DB Trustee
