Exhibit 99.6(c)
EXECUTION COPY
AMENDMENT REG AB
TO THE MORTGAGE LOAN SALE AND SERVICING AGREEMENT
This is Amendment Reg AB ("Amendment Reg AB"), dated as of January 26, 2006,
by and among Xxxxxx Xxxxxxx Mortgage Capital Inc. (the "Purchaser"),
Countrywide Home Loans, Inc. (the "Seller") and Countrywide Home Loans
Servicing LP (the "Servicer", and collectively with the Seller, the "Company")
to (i) that certain Second Amended and Restated Mortgage Sale and Servicing
Agreement, dated as of September 1, 2005, by and among the Seller, the
Servicer and the Purchaser, and (ii) that certain Mortgage Sale and Servicing
Agreement, dated as of October 1, 2005, by and among the Seller, the Servicer
and the Purchaser (collectively, as amended, modified or supplemented, the
"Existing Agreements").
W I T N E S S E T H
WHEREAS, the Company and the Purchaser have agreed, subject to the
terms and conditions of this Amendment Reg AB that the Existing Agreements be
amended to reflect agreed upon revisions to the terms of the Existing
Agreement.
Accordingly, the Company and the Purchaser hereby agree, in
consideration of the mutual premises and mutual obligations set forth herein,
that each Existing Agreement is hereby amended as follows:
1. Capitalized terms used herein but not otherwise defined shall have
the meanings set forth in the Existing Agreements. Each Existing Agreement is
hereby amended by adding the following definitions in their proper
alphabetical order:
Commission: The United States Securities and Exchange Commission.
Company Information: As defined in Section 2(g)(i)(A)(1).
Depositor: The depositor, as such term is defined in Regulation AB,
with respect to any Securitization Transaction.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Qualified Correspondent: Any Person from which the Company purchased
Mortgage Loans, provided that the following conditions are satisfied: (i) such
Mortgage Loans were either (x) originated pursuant to an agreement between the
Company and such Person that contemplated that such Person would underwrite
mortgage loans from time to time, for sale to the Company, in accordance with
underwriting guidelines designated by the Company ("Designated Guidelines") or
guidelines that do not vary materially from such Designated Guidelines or (y)
individually re-underwritten by the Company to the Designated Guidelines at
the time such Mortgage Loans were acquired by the Company; (ii) either (x) the
Designated Guidelines were, at the time such Mortgage Loans were originated,
used by the Company in origination of mortgage loans of the same type as the
Mortgage Loans for the Company's own account or (y) the Designated Guidelines
were, at the time such Mortgage Loans were underwritten, designated by the
Company on a consistent basis for use by lenders in originating
mortgage loans to be purchased by the Company; and (iii) the Company employed,
at the time such Mortgage Loans were acquired by the Company, pre-purchase or
post-purchase quality assurance procedures (which may involve, among other
things, review of a sample of mortgage loans purchased during a particular time
period or through particular channels) designed to ensure that either Persons
from which it purchased mortgage loans properly applied the underwriting
criteria designated by the Company or the Mortgage Loans purchased by the
Company substantially comply with the Designated Guidelines.
Reconstitution: Any Securitization Transaction or Whole Loan
Transfer.
Reconstitution Agreement: An agreement or agreements entered into by
the Company and the Purchaser and/or certain third parties in connection with
a Reconstitution with respect to any or all of the Mortgage Loans serviced
under the Agreement.
Regulation AB: Subpart 229.1100 - Asset Backed Securities (Regulation
AB), 17 C.F.R. ss.ss.229.1100-229.1123, as such may be amended from time to
time, and subject to such clarification and interpretation as have been
provided by the Commission in the adopting release (Asset-Backed Securities,
Securities Act Release No. 33-8518, 70 Fed. Reg. 1,506, 1,531 (Jan. 7, 2005))
or by the staff of the Commission, or as may be provided by the Commission or
its staff from time to time.
Securities Act: The Securities Act of 1933, as amended.
Securitization Transaction: Any transaction subject to Regulation AB
involving either (1) a sale or other transfer of some or all of the Mortgage
Loans directly or indirectly to an issuing entity in connection with an
issuance of publicly offered, rated mortgage-backed securities or (2) an
issuance of publicly offered, rated securities, the payments on which are
determined primarily by reference to one or more portfolios of residential
mortgage loans consisting, in whole or in part, of some or all of the Mortgage
Loans.
Servicer: As defined in Section 2(c)(iii).
Servicing Criteria: The "servicing criteria" set forth in Item
1122(d) of Regulation AB, as such may be amended from time to time.
Static Pool Information: Static pool information as described in Item
1105.
Subcontractor: Any vendor, subcontractor or other Person that is not
responsible for the overall servicing (as "servicing" is commonly understood
by participants in the mortgage-backed securities market) of Mortgage Loans
but performs one or more discrete functions identified in Item 1122(d) of
Regulation AB with respect to Mortgage Loans under the direction or authority
of the Company or a Subservicer.
Subservicer: Any Person that services Mortgage Loans on behalf of the
Company or any Subservicer and is responsible for the performance (whether
directly or through Subservicers or Subcontractors) of a substantial portion
of the material servicing functions required to be performed by the Company
under this Agreement or any Reconstitution Agreement that are identified in
Item 1122(d) of Regulation AB; provided, however, that the term "Subservicer"
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shall not include any master servicer, or any special servicer engaged at the
request of a Depositor, Purchaser or investor in a Securitization Transaction,
nor any "back-up servicer" or trustee performing servicing functions on behalf
of a Securitization Transaction.
Third-Party Originator: Each Person, other than a Qualified
Correspondent, that originated Mortgage Loans acquired by the Company.
Whole Loan Transfer: Any sale or transfer of some or all of the
Mortgage Loans, other than a Securitization Transaction.
2. The Purchaser and the Company agree that each Existing Agreement
is hereby amended by adding the following provisions:
(a) Intent of the Parties; Reasonableness.
The Purchaser and the Company acknowledge and agree that the purpose
of Article 2 of this Agreement is to facilitate compliance by the Purchaser
and any Depositor with the provisions of Regulation AB and related rules and
regulations of the Commission. Neither the Purchaser nor any Depositor shall
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 thereunder. The Company 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,
and agrees to negotiate in good faith with the Purchaser or any Depositor with
regard to any reasonable requests for delivery of information under these
provisions on the basis of evolving interpretations of Regulation AB. In
connection with any Securitization Transaction, the Company shall cooperate
fully with the Purchaser to deliver to the Purchaser (including any of its
assignees or designees) and any Depositor, any and all statements, reports,
certifications, records and any other information necessary to permit the
Purchaser or such Depositor to comply with the provisions of Regulation AB,
together with such disclosures relating to the Company, and any parties or
items identified in writing by the Purchaser, including, any Subservicer, any
Third-Party Originator and the Mortgage Loans, or the servicing of the
Mortgage Loans necessary in order to effect such compliance.
The Purchaser agrees that it will cooperate with the Company and
provide sufficient and timely notice of any information requirements
pertaining to a Securitization Transaction. The Purchaser will make all
reasonable efforts to contain requests for information, reports or any other
materials to items required for compliance with Regulation AB, and shall not
request information which is not required for such compliance.
(b) Additional Representations and Warranties of the Company.
(i) The Company shall be deemed to represent to the Purchaser and
to any Depositor, as of the date on which information is first
provided to the Purchaser or any Depositor under Section 2(c) that,
except as disclosed in writing to the Purchaser or such Depositor
prior to such date: (i) the Company 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 due to
any act or failure to act of the Company; (ii) the
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Company has not been terminated as servicer in a residential
mortgage loan securitization, either due to a servicing default or to
application of a servicing performance test or trigger; (iii) no
material noncompliance with the applicable servicing criteria with
respect to other securitizations of residential mortgage loans
involving the Company as servicer has been disclosed or reported by
the Company; (iv) no material changes to the Company's policies or
procedures with respect to the servicing function it will perform
under this Agreement and any Reconstitution Agreement for mortgage
loans of a type similar to the Mortgage Loans have occurred during
the three-year period immediately preceding the related
Securitization Transaction; (v) there are no aspects of the Company's
financial condition that could have a material adverse effect on the
performance by the Company of its servicing obligations under this
Agreement or any Reconstitution Agreement; (vi) there are no material
legal or governmental proceedings pending (or known to be
contemplated) against the Company, any Subservicer or any Third-Party
Originator; and (vii) there are no affiliations, relationships or
transactions relating to the Company, any Subservicer or any
Third-Party Originator with respect to any Securitization Transaction
and any party thereto identified by the related Depositor of a type
described in Item 1119 of Regulation AB.
(ii) If so requested by the Purchaser or any Depositor on any
date following the date on which information is first provided to the
Purchaser or any Depositor under Section 2(c), the Company shall,
within ten Business Days following such request, confirm in writing
the accuracy of the representations and warranties set forth in
paragraph (i) of this Section or, if any such representation and
warranty is not accurate as of the date of such request, provide
reasonably adequate disclosure of the pertinent facts, in writing, to
the requesting party.
(c) Information to Be Provided by the Company.
In connection with any Securitization Transaction the Company shall
(1) within ten Business Days following request by the Purchaser or any
Depositor, provide to the Purchaser and such Depositor (or, as applicable,
cause each Third-Party Originator and each Subservicer to provide), in writing
reasonably required for compliance with Regulation AB, the information and
materials specified in paragraphs (i), (ii), (iii) and (vi) of this Section
2(c), and (2) as promptly as practicable following notice to or discovery by
the Company, provide to the Purchaser and any Depositor (as required by
Regulation AB) the information specified in paragraph (iv) of this Section.
(i) If so requested by the Purchaser or any Depositor, the
Company shall provide such information regarding (x) the Company, as
originator of the Mortgage Loans (including as an acquirer of
Mortgage Loans from a Qualified Correspondent, if applicable), or (y)
as applicable, each Third-Party Originator, and (z) as applicable,
each Subservicer, as is requested for the purpose of compliance with
Items 1103(a)(1), 1105 (subject to paragraph (b) below), 1110, 1117
and 1119 of Regulation AB. Such information shall include, at a
minimum:
(A) the originator's form of organization;
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(B) to the extent material, a description of the originator's
origination program and how long the originator has been engaged in
originating residential mortgage loans, which description shall
include a discussion of the originator's experience in originating
mortgage loans of a similar type as the Mortgage Loans; if material,
information regarding the size and composition of the originator's
origination portfolio; and information that may be material to an
analysis of the performance of the Mortgage Loans, including the
originators' credit-granting or underwriting criteria for mortgage
loans of similar type(s) as the Mortgage Loans and such other
information as the Purchaser or any Depositor may reasonably request
for the purpose of compliance with Item 1110(b)(2) of Regulation AB;
(C) a brief description of any material legal or governmental
proceedings pending (or known to be contemplated by a governmental
authority) against the Company, each Third-Party Originator, if
applicable, and each Subservicer; and
(D) a description of any affiliation or relationship between
the Company, each Third-Party Originator, if applicable, each
Subservicer and any of the following parties to a Securitization
Transaction, as such parties are identified to the Company by the
Purchaser or any Depositor in writing within ten days in advance of
such Securitization Transaction:
(1) the sponsor;
(2) the depositor;
(3) the issuing entity;
(4) any servicer;
(5) any trustee;
(6) any originator;
(7) any significant obligor;
(8) any enhancement or support provider; and
(9) any other material transaction party.
(ii) If so requested by the Purchaser or any Depositor, and if
required by Regulation AB, the Company shall provide (or, as
applicable, cause each Third-Party Originator to provide) Static Pool
Information with respect to the mortgage loans (of a similar type as
the Mortgage Loans, as reasonably identified by the Purchaser as
provided below) originated by (a) the Company, if the Company is an
originator of Mortgage Loans (including as an acquirer of Mortgage
Loans from a Qualified Correspondent, if applicable), and/or (b) as
applicable, each Third-Party Originator. Such Static Pool Information
shall be prepared by the Company (or, if applicable, the Third-Party
Originator) on the basis of its reasonable, good faith interpretation
of the requirements of Item 1105(a)(1)-(3) of Regulation AB. To the
extent that there is reasonably available to the Company (or
Third-Party Originator, as applicable) Static Pool Information with
respect to more than one mortgage loan type, the Purchaser or any
Depositor shall be entitled to specify whether some or all of such
information shall be provided pursuant to this paragraph. The content
of such Static Pool Information may be in the form customarily
provided by the Company, and need not be customized for the Purchaser
or
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any Depositor. Such Static Pool Information for each vintage
origination year or prior securitized pool, as applicable, shall be
presented in increments no less frequently than quarterly over the
life of the mortgage loans included in the vintage origination year
or prior securitized pool. The most recent periodic increment must be
as of a date no later than 135 days prior to the date of the
prospectus or other offering document in which the Static Pool
Information is to be included or incorporated by reference. The
Static Pool Information shall be provided in an electronic format
that provides a permanent record of the information provided, such as
a portable document format (pdf) file, or other such electronic
format mutually agreed upon by the Purchaser and the Company.
Promptly following notice or discovery of a material error
(as determined in the judgment of the Company) in Static Pool
Information provided pursuant to the immediately preceding paragraph
(including an omission to include therein information required to be
provided pursuant to such paragraph), the Company shall provide
corrected Static Pool Information to the Purchaser or any Depositor,
as applicable, in the same format in which Static Pool Information
was previously provided to such party by the Company.
If so requested by the Purchaser or any Depositor, the
Company shall provide (or, as applicable, cause each Third-Party
Originator to provide), at the expense of the requesting party (to
the extent of any additional incremental expense associated with
delivery pursuant to this Agreement), agreed-upon procedures letters
of certified public accountants pertaining to Static Pool Information
relating to prior securitized pools for securitizations closed on or
after January 1, 2006 or, in the case of Static Pool Information with
respect to the Company's or, if applicable, Third-Party Originator's
originations or purchases, to calendar months commencing January 1,
2006, as the Purchaser or such Depositor shall reasonably request.
Such statements and letters shall be addressed to and be for the
benefit of such parties as the Purchaser or such Depositor shall
designate, which shall be limited to any Sponsor, any Depositor, any
broker dealer acting as underwriter, placement agent or initial
purchaser with respect to a Securitization Transaction or any other
party that is reasonably and customarily entitled to receive such
statements and letters in a Securitization Transaction. Any such
statement or letter may take the form of a standard, generally
applicable document accompanied by a reliance letter authorizing
reliance by the addressees designated by the Purchaser or such
Depositor.
(iii) If reasonably requested by the Purchaser or any Depositor,
the Company shall provide such information regarding the Company, as
servicer of the Mortgage Loans, and each Subservicer (each of the
Company and each Subservicer, for purposes of this paragraph, a
"Servicer"), as is reasonably requested for the purpose of compliance
with Items 1108 of Regulation AB. Such information shall include, at
a minimum:
(A) the Servicer's form of organization;
(B) a description of how long the Servicer has been
servicing residential mortgage loans; a general discussion of
the Servicer's experience in servicing assets of any type as
well as a more detailed discussion of the Servicer's
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experience in, and procedures for, the servicing function
it will perform under this Agreement and any Reconstitution
Agreements; information regarding the size, composition and
growth of the Servicer's portfolio of residential mortgage
loans of a type similar to the Mortgage Loans and information
on factors related to the Servicer that may be material, in the
reasonable determination of the Purchaser or any Depositor, to
any analysis of the servicing of the Mortgage Loans or the
related asset-backed securities, as applicable, including,
without limitation:
(1) whether any prior securitizations of mortgage
loans of a type similar to the Mortgage Loans involving
the Servicer have defaulted or experienced an early
amortization or other performance triggering event because
of servicing during the three-year period immediately
preceding the related Securitization Transaction;
(2) the extent of outsourcing the Servicer utilizes;
(3) whether there has been previous disclosure of
material noncompliance with the applicable servicing
criteria with respect to other securitizations of
residential mortgage loans involving the Servicer as a
servicer during the three-year period immediately
preceding the related Securitization Transaction;
(4) whether the Servicer has been terminated as
servicer in a residential mortgage loan securitization,
either due to a servicing default or to application of a
servicing performance test or trigger; and
(5) such other information as the Purchaser or any
Depositor may reasonably request for the purpose of
compliance with Item 1108(b)(2) of Regulation AB;
(C) a description of any material changes during the
three-year period immediately preceding the related
Securitization Transaction to the Servicer's policies or
procedures with respect to the servicing function it will
perform under this Agreement and any Reconstitution Agreements
for mortgage loans of a type similar to the Mortgage Loans;
(D) information regarding the Servicer's financial
condition, to the extent that there is a material risk that an
adverse financial event or circumstance involving the Servicer
could have a material adverse effect on the performance by the
Company of its servicing obligations under this Agreement or
any Reconstitution Agreement;
(E) information regarding advances made by the Servicer on
the Mortgage Loans and the Servicer's overall servicing
portfolio of residential mortgage loans for the three-year
period immediately preceding the related Securitization
Transaction, which may be limited to a statement by an
authorized officer of the Servicer to the effect that the
Servicer has made all advances required to be made on
residential mortgage loans serviced by it during such
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period, or, if such statement would not be accurate, information
regarding the percentage and type of advances not made as
required, and the reasons for such failure to advance;
(F) a description of the Servicer's processes and
procedures designed to address any special or unique factors
involved in servicing loans of a similar type as the Mortgage
Loans;
(G) a description of the Servicer's processes for handling
delinquencies, losses, bankruptcies and recoveries, such as
through liquidation of mortgaged properties, sale of defaulted
mortgage loans or workouts; and
(H) information as to how the Servicer defines or
determines delinquencies and charge-offs, including the effect
of any grace period, re-aging, restructuring, partial payments
considered current or other practices with respect to
delinquency and loss experience.
(iv) For the purpose of satisfying its reporting obligation under
the Exchange Act with respect to any class of asset-backed securities,
the Company shall (or shall cause each Subservicer and, if applicable,
any Third-Party Originator to) (a) provide prompt notice to the
Purchaser, any Master Servicer and any Depositor in writing of (1) any
merger, consolidation or sale of substantially all of the assets of the
Company, (2) the Company's entry into an agreement with a Subservicer to
perform or assist in the performance of any of the Company's obligations
under the Agreement or any Reconstitution Agreement, (3) any Event of
Default under the terms of the Agreement or any Reconstitution Agreement,
and (4) any material litigation or governmental proceedings involving the
Company, any Subservicer or any Third Party Originator.
(v) As a condition to the succession to the Company or any
Subservicer as servicer or subservicer under this Agreement or any
applicable Reconstitution Agreement related thereto by any Person (i)
into which the Company or such Subservicer may be merged or consolidated,
or (ii) which may be appointed as a successor to the Company or any
Subservicer, the Company shall provide to the Purchaser and any
Depositor, at least 15 calendar days prior to the effective date of such
succession or appointment, (x) written notice to the Purchaser and any
Depositor of such succession or appointment and (y) in writing, all
information reasonably requested by the Purchaser or any Depositor in
order to comply with its reporting obligation under Item 6.02 of Form 8-K
with respect to any class of asset-backed securities.
(vi) If reasonably requested by the Purchaser or the Master
Servicer, the Company shall provide to the Purchaser or the Master
Servicer, evidence of the authorization of the person signing any
certification or statement.
(vii) The Company shall provide to the Purchaser and any Depositor a
description of any affiliation or relationship required to be disclosed
under Item 1119 of Regulation AB between the Company and any of the
parties listed in Items 1119(a)(1)-(6) of Regulation AB that develops
following the closing date of a Securitization
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Transaction (other than an affiliation or relationship that the
Purchaser, the Depositor or any issuing entity has with any of such
parties listed in Items 1119(a)(1)-(6) of Regulation AB) no later than 15
calendar days prior to the date the Depositor is required to file its
Form 10-K disclosing such affiliation or relationship. For purposes of
the foregoing, the Company (1) shall be entitled to assume that the
parties to the Securitization Transaction with whom affiliations or
relations must be disclosed are the same as on the closing date if it
provides a written request (which may be by e-mail) to the Depositor or
Master Servicer, as applicable, requesting such confirmation and either
obtains such confirmation or receives no response within three (3)
Business Days, (2) shall not be obligated to disclose any affiliations or
relationships that may develop after the closing date for the
Securitization Transaction with any parties not identified to the Company
pursuant to clause (D) of paragraph (i) of this Section 2(c), and (3)
shall be entitled to rely upon any written identification of parties
provided by the Depositor, the Purchaser or any master servicer.
(viii) Not later than ten days prior to the deadline for the filing
of any distribution report on Form 10-D in respect of any Securitization
Transaction that includes any of the Mortgage Loans serviced by the
Company or any Subservicer, the Company or such Subservicer, as
applicable, shall, to the extent the Company or such Subservicer has
knowledge, provide to the party responsible for filing such report
(including, if applicable, the Master Servicer) notice of the occurrence
of any of the following events along with all information, data, and
materials related thereto as may be required to be included in the
related distribution report on Form 10-D (as specified in the provisions
of Regulation AB referenced below):
(a) any material modifications, extensions or waivers of
Mortgage Loan terms, fees, penalties or payments during the
distribution period or that have cumulatively become material over
time (Item 1121(a)(11) of Regulation AB;
(b) material breaches of Mortgage Loan representations or
warranties or transaction covenants under the applicable Existing
Agreement, as amended herein (Item 1121(a)(12) of Regulation AB); and
(c) information regarding any Mortgage Loan changes (such as,
additions, substitutions or repurchases), and any material changes in
origination, underwriting or other criteria for acquisition or
selection of pool assets (Item 1121(a)(14) of Regulation AB).
(d) Servicer Compliance Statement.
On or before March 5 of each calendar year, commencing in 2007, the
Company shall deliver to the Purchaser and any Depositor a statement of
compliance addressed to the Purchaser and such Depositor and signed by an
authorized officer of the Company, to the effect that (i) a review of the
Company's servicing activities during the immediately preceding calendar year
(or applicable portion thereof) and of its performance under the servicing
provisions of this Agreement and any applicable Reconstitution Agreement
during such period has been made under such officer's supervision, and (ii) to
the best of such officers' knowledge, based on such
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review, the Company has fulfilled all of its servicing obligations under this
Agreement and any applicable Reconstitution Agreement in all material respects
throughout such calendar year (or applicable portion thereof) or, if there has
been a failure to fulfill any such obligation in any material respect,
specifically identifying each such failure known to such officer and the
nature and the status thereof.
(e) Report on Assessment of Compliance and Attestation.
(i) On or before March 5 of each calendar year, commencing in
2007, the Company shall:
(A) deliver to the Purchaser and any Depositor a report
regarding the Company's assessment of compliance with the 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 Purchaser and
such Depositor and signed by an authorized officer of the Company,
and shall address each of the Servicing Criteria specified on
Exhibit A hereto (wherein "Investor" shall mean the master
servicer);
(B) deliver to the Purchaser and any Depositor a report of a
registered public accounting firm that attests to, and reports on,
the assessment of compliance made by the Company 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;
(C) cause each Subservicer and each Subcontractor determined by
the Company pursuant to Section 2(f)(ii) to be "participating in the
servicing function" within the meaning of Item 1122 of Regulation AB
(each, a "Participating Entity"), to deliver to the Purchaser and
any Depositor an assessment of compliance and accountants'
attestation as and when provided in paragraphs (i) and (ii) of this
Section 2(e); and
(D) deliver to the Purchaser, Depositor or any other Person
that will be responsible for signing the certification (a "Sarbanes
Certification") required by Rules 13a-14(d) and 15d-14(d) under the
Exchange Act (pursuant to Section 302 of the Xxxxxxxx-Xxxxx Act of
2002) on behalf of an asset-backed issuer with respect to a
Securitization Transaction a certification, signed by an appropriate
officer of the Company, in the form attached hereto as Exhibit B;
provided that such certification delivered by the Company may not be
filed as an exhibit to, or included in, any filing with the
Commission.
The Company acknowledges that the party identified in clause (i)(D)
above may rely on the certification provided by the Company pursuant to such
clause in signing a Sarbanes Certification and filing such with the
Commission.
(ii) Each assessment of compliance provided by a Subservicer
pursuant to Section 2(e)(i)(A) shall address each of the Servicing
Criteria specified on Exhibit A hereto or, in the case of a
Subservicer subsequently appointed as such, on or prior to the
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date of such appointment. An assessment of compliance provided
by a Participating Entity pursuant to Section 2(e)(i)(C) need not
address any elements of the Servicing Criteria other than those
specified by the Company pursuant to Section 2(f).
(f) Use of Subservicers and Subcontractors.
The Company shall not hire or otherwise utilize the services of any
Subservicer to fulfill any of the obligations of the Company as servicer under
this Agreement or any related Reconstitution Agreement unless the Company
complies with the provisions of paragraph (i) of this Subsection (f). The
Company shall not hire or otherwise utilize the services of any Subcontractor,
and shall not permit any Subservicer to hire or otherwise utilize the services
of any Subcontractor, to fulfill any of the obligations of the Company as
servicer under this Agreement or any related Reconstitution Agreement unless
the Company complies with the provisions of paragraph (ii) of this Subsection
(f).
(i) It shall not be necessary for the Company to seek the
consent of the Purchaser or any Depositor to the utilization of any
Subservicer. If required by Regulation AB, the Company shall cause
any Subservicer used by the Company (or by any Subservicer) for the
benefit of the Purchaser and any Depositor to comply with the
provisions of this Section and with Sections 2(b), 2(c)(iii),
2(c)(v), 2(d), and 2(e) of this Agreement , and to provide the
information required with respect to such Subservicer under Section
2(c)(iv) of this Agreement. The Company shall be responsible for
obtaining from each Subservicer and delivering to the Purchaser and
any Depositor any servicer compliance statement required to be
delivered by such Subservicer under Section 2(d), any assessment of
compliance and attestation required to be delivered by such
Subservicer under Section 2(e) and any certification required to be
delivered to the Person that will be responsible for signing the
Sarbanes Certification under Section 2(e) as and when required to be
delivered.
(ii) It shall not be necessary for the Company to seek the
consent of the Purchaser or any Depositor to the utilization of any
Subcontractor. If required by Regulation AB, the Company shall after
engagement of such Subcontractor, promptly provide a written
description of the role and function of each Subcontractor utilized
by the Company or any Subservicer, specifying (A) the identity of
each such Subcontractor, (B) which (if any) of such Subcontractors
are Participating Entities, and (C) which elements of the Servicing
Criteria will be addressed in assessments of compliance provided by
each Participating Entity identified pursuant to clause (B) of this
paragraph.
The Company shall cause any such Participating Entity used by the
Company (or by any Subservicer) for the benefit of the Purchaser and any
Depositor to comply with the provisions of Section 2(e) of this Agreement. The
Company shall be responsible for obtaining from each Participating Entity and
delivering to the Purchaser and any Depositor any assessment of compliance and
attestation required to be delivered by such Participating Entity under
Section 2(e), in each case as and when required to be delivered.
(g) Indemnification; Remedies.
-11-
(i) The Company shall indemnify the Purchaser and the Depositor
and each of the following parties participating in a Securitization
Transaction: each sponsor and issuing entity; each Person
responsible for the execution or filing of any report required to be
filed with the Commission with respect to such Securitization
Transaction, or for execution of a certification pursuant to Rule
13a-14(d) or Rule 15d-14(d) under the Exchange Act with respect to
such Securitization Transaction; 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 and employees 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:
(A) (1) any untrue statement of a material fact contained
or alleged to be contained in any information, report,
certification or other material provided in written or
electronic form under this Amendment Reg AB by or on behalf of
the Company, or provided under this Amendment Reg AB by or on
behalf of any Subservicer, Participating Entity or, if
applicable, Third-Party Originator (collectively, the "Company
Information"), or (2) the omission or alleged omission to state
in the Company Information a material fact required to be
stated in the Company 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 (2) of this paragraph shall be
construed solely by reference to the Company Information and
not to any other information communicated in connection with a
sale or purchase of securities, without regard to whether the
Company Information or any portion thereof is presented
together with or separately from such other information;
(B) any failure by the Company, any Subservicer, any
Participating Entity or any Third-Party Originator to deliver
any information, report, certification, accountants' letter or
other material when and as required under this Amendment Reg
AB, including any failure by the Company to identify pursuant
to Section 2(f)(ii) any Participating Entity;
(C) any breach by the Company of a representation or
warranty set forth in Section 2(b)(i) or in a writing furnished
pursuant to Section 2(b)(ii) and made as of a date prior to the
closing date of the related Securitization Transaction, to the
extent that such breach is not cured by such closing date, or
any breach by the Company of a representation or warranty in a
writing furnished pursuant to Section 2(b)(ii) to the extent
made as of a date subsequent to such closing date.
If the indemnification provided for in this Section 2(g)(i) is
unavailable or insufficient to hold harmless the indemnified parties
set forth in this Section 2(g)(i) above, then the Company agrees that
it shall contribute to the amount paid or payable by such indemnified
party as a result of any claims, losses, damages or liabilities
incurred by such
-12-
indemnified party in such proportion as is appropriate to reflect the
relative fault of such indemnified party on the one hand and the
Company on the other.
In the case of any failure of performance described in clause (i)(B)
of this Section, the Company shall promptly reimburse the Purchaser,
any Depositor, as applicable, and each Person responsible for the
execution or filing of any report required to be filed with the
Commission with respect to such Securitization Transaction, or for
execution of a certification pursuant to Rule 13a-14(d) or Rule
15d-14(d) under the Exchange Act with respect to such Securitization
Transaction, for all costs reasonably incurred by each such party in
order to obtain the information, report, certification, accountants'
letter or other material not delivered as required by the Company,
any Subservicer, any Participating Entity or any Third-Party
Originator.
(ii) (A) Any failure by the Company to deliver or, if
required by Regulation AB, any Subservicer, any Participating
Entity or any Third-Party Originator to deliver any
information, report, certification, accountants' letter or
other material when and as required under this Amendment Reg
AB, which continues unremedied for three Business Days after
receipt by the Company and by the applicable Subservicer,
Subcontractor, or Third-Party Originator, so long as their
addresses for notices has been provided, in writing, previously
to the Purchaser or the Depositor, of written notice of such
failure from the Purchaser or Depositor shall, except as
provided in clause (B) of this paragraph, constitute an Event
of Default with respect to the Company under this Agreement and
any applicable Reconstitution Agreement, and shall entitle the
Purchaser or Depositor, as applicable, in its sole discretion
to terminate the rights and obligations of the Company as
servicer under this Agreement and/or any applicable
Reconstitution Agreement related thereto without payment
(notwithstanding anything in this Agreement or any applicable
Reconstitution Agreement related thereto to the contrary) of
any compensation to the Company; provided, however it is
understood that the Company shall remain entitled to receive
reimbursement for all unreimbursed Monthly Advances and
Servicing Advances made by the Company under this Agreement
and/or any applicable Reconstitution Agreement. Notwithstanding
anything to the contrary set forth herein, to the extent that
any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of
certain rights or obligations following termination of the
Company as servicer, such provision shall be given effect.
(B) Any failure by the Company, or, if required under
Regulation AB, any Subservicer or any Participating Entity to
deliver any information, report, certification or accountants'
letter when and as required under Section 2(d) or 2(e),
including any failure by the Company to identify a
Participating Entity, which continues unremedied for ten
calendar days after the date on which such information, report,
certification or accountants' letter was required to be
delivered shall constitute an Event of Default with respect to
the Company under this Agreement and any applicable
Reconstitution Agreement, and shall entitle the Purchaser or
Depositor, as applicable, in its sole discretion to terminate
the rights and obligations of the Company as servicer under
this Agreement and/or any
-13-
applicable Reconstitution Agreement without payment
(notwithstanding anything in this Agreement to the contrary) of
any compensation to the Company; provided, however it is
understood that the Company shall remain entitled to receive
reimbursement for all unreimbursed Monthly Advances and
Servicing Advances made by the Company under this Agreement
and/or any applicable Reconstitution Agreement. Notwithstanding
anything to the contrary set forth herein, to the extent that
any provision of this Agreement and/or any applicable
Reconstitution Agreement expressly provides for the survival of
certain rights or obligations following termination of the
Company as servicer, such provision shall be given effect.
(C) The Company shall promptly reimburse the Purchaser (or
any affected designee of the Purchaser, such as a master
servicer) and any Depositor, as applicable, for all reasonable
expenses incurred by the Purchaser (or such designee) or such
Depositor as such are incurred, in connection with the
termination of the Company as servicer and the transfer of
servicing of the Mortgage Loans to a successor servicer. The
provisions of this paragraph shall not limit whatever rights
the Company, the Purchaser or any Depositor may have under
other provisions of this Agreement and/or any applicable
Reconstitution Agreement or otherwise, whether in equity or at
law, such as an action for damages, specific performance or
injunctive relief.
(iii) The indemnification and contribution obligations set
forth in this Section 2(g) shall survive the termination of
this Agreement or the termination of any party to this
Agreement.
3. Notwithstanding any other provision of this Amendment Reg AB, the
Company shall seek the consent of the Purchaser for the utilization of all
Subservicers and Participating Entities, when required by and in accordance
with the terms of the applicable Existing Agreement.
4. Each Existing Agreement is hereby amended by adding the Exhibit
attached hereto as Exhibit A to the end thereto. References in this Amendment
Reg AB to "this Agreement" or words of similar import (including indirect
references to the Agreement) shall be deemed to be references to the
applicable Existing Agreement as amended by this Amendment Reg AB. Except as
expressly amended and modified by this Amendment Reg AB, each Existing
Agreement shall continue to be, and shall remain, in full force and effect in
accordance with its terms. In the event of a conflict between this Amendment
Reg AB and any other document or agreement, including without limitation the
applicable Existing Agreement, this Amendment Reg AB shall control.
5. This Amendment Reg AB may be executed in one or more counterparts
and by different parties hereto on separate counterparts, each of which, when
so executed, shall constitute one and the same agreement. This Amendment Reg
AB will become effective as of the date first mentioned above. This Amendment
Reg AB shall bind and inure to the benefit of and be enforceable by the
Company and the Purchaser and the respective permitted successors and assigns
of the Company and the successors and assigns of the Purchaser.
-14-
[Signature Page Follows]
-15-
IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day
and year first above written.
XXXXXX XXXXXXX MORTGAGE
CAPITAL INC.
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
------------------------------
Title: Executive Director
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxxx
--------------------------------------
Title: First Vice President
COUNTRYWIDE HOME LOANS
SERVICING LP
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxxx
--------------------------------------
Title: First Vice President
Signature page to Amendment Reg AB
EXHIBIT A
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name
of Subservicer] shall address, at a minimum, the applicable criteria
identified below as "Applicable Servicing Criteria":
-----------------------------------------------------------------------------------------------------------------
Applicable Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
General Servicing Considerations
-----------------------------------------------------------------------------------------------------------------
Policies and procedures are instituted to monitor any performance
or other triggers and events of default in accordance with the X
1122(d)(1)(i) transaction agreements.
-----------------------------------------------------------------------------------------------------------------
If any material servicing activities are outsourced to third
parties, policies and procedures are instituted to monitor the X
third party's performance and compliance with such servicing
1122(d)(1)(ii) activities.
-----------------------------------------------------------------------------------------------------------------
Any requirements in the transaction agreements to
maintain a back-up servicer for the mortgage loans are
1122(d)(1)(iii) maintained.
-----------------------------------------------------------------------------------------------------------------
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 X
otherwise in accordance with the terms of the transaction
1122(d)(1)(iv) agreements.
-----------------------------------------------------------------------------------------------------------------
Cash Collection and Administration
-----------------------------------------------------------------------------------------------------------------
Payments on mortgage loans are deposited into the appropriate
custodial bank accounts and related bank clearing accounts no more X
than two business days following receipt, or such other number of
1122(d)(2)(i) days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Disbursements made via wire transfer on behalf of an obligor or to X
1122(d)(2)(ii) an investor are made only by authorized personnel.
-----------------------------------------------------------------------------------------------------------------
Advances of funds or guarantees regarding collections, cash flows
or distributions, and any interest or other fees charged for such X
advances, are made, reviewed and approved as specified in the
1122(d)(2)(iii) transaction agreements.
-----------------------------------------------------------------------------------------------------------------
The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of overcollateralization, X
are separately maintained (e.g., with respect to commingling of cash)
1122(d)(2)(iv) as set forth in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Each custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes X
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
1122(d)(2)(v) Securities Exchange Act.
-----------------------------------------------------------------------------------------------------------------
Unissued checks are safeguarded so as to prevent unauthorized X
1122(d)(2)(vi) access.
-----------------------------------------------------------------------------------------------------------------
A-1
-----------------------------------------------------------------------------------------------------------------
Applicable Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
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 X
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
1122(d)(2)(vii) agreements.
-----------------------------------------------------------------------------------------------------------------
Investor Remittances and Reporting
-----------------------------------------------------------------------------------------------------------------
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 X
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 mortgage loans
1122(d)(3)(i) serviced by the 1122(d)(3)(i) Servicer.
-----------------------------------------------------------------------------------------------------------------
Amounts due to investors are allocated and remitted in
accordance X with timeframes, distribution priority and X
1122(d)(3)(ii) other terms set forth in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Disbursements made to an investor are posted within two business
days to the Servicer's investor records, or such other number of X
1122(d)(3)(iii) days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Amounts remitted to investors per the investor reports
agree with cancelled checks, or other form of payment, or X
1122(d)(3)(iv) custodial bank statements.
-----------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------
Pool Asset Administration
-------------------- --------------------------------------------------------------------- ----------------------
Collateral or security on mortgage loans is maintained as
required by the transaction agreements or related X
1122(d)(4)(i) mortgage loan documents.
-----------------------------------------------------------------------------------------------------------------
Mortgage loan and related documents are safeguarded as required by X
1122(d)(4)(ii) the transaction agreements
-----------------------------------------------------------------------------------------------------------------
Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions or X
1122(d)(4)(iii) requirements in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are posted to
the Servicer's obligor records maintained no more than two business X
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 mortgage
1122(d)(4)(iv) loan documents.
-----------------------------------------------------------------------------------------------------------------
The Servicer's records regarding the mortgage loans agree with the
Servicer's records with respect to an obligor's unpaid principal X
1122(d)(4)(v) balance.
-----------------------------------------------------------------------------------------------------------------
A-2
-----------------------------------------------------------------------------------------------------------------
Applicable Servicing
Servicing Criteria Criteria
-----------------------------------------------------------------------------------------------------------------
Reference Criteria
-----------------------------------------------------------------------------------------------------------------
Changes with respect to the terms or status of an obligor's X
mortgage loans (e.g., loan modifications or re-agings) are made,
reviewed and approved by authorized personnel in accordance with
1122(d)(4)(vi) the transaction agreements and related pool asset documents.
-----------------------------------------------------------------------------------------------------------------
Loss mitigation or recovery actions (e.g., forbearance plans, X
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and
concluded in accordance with the timeframes or other requirements
1122(d)(4)(vii) established by the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Records documenting collection efforts are maintained during the
period a mortgage loan is delinquent in accordance with the X
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 mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency
1122(d)(4)(viii) is deemed temporary (e.g., illness or unemployment).
-----------------------------------------------------------------------------------------------------------------
Adjustments to interest rates or rates of return for mortgage loans X
with variable rates are computed based on the related mortgage loan
1122(d)(4)(ix) documents.
-----------------------------------------------------------------------------------------------------------------
Regarding any funds held in trust for an obligor (such as escrow X
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan 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 mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30
calendar days of full repayment of the related mortgage loans, or
1122(d)(4)(x) such other number of days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
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 X
payments, provided that such support has been received by the
servicer at least 30 calendar days prior to these dates, or such
1122(d)(4)(xi) other number of days specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
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 X
not charged to the obligor, unless the late payment was due to the
1122(d)(4)(xii) obligor's error or omission.
-----------------------------------------------------------------------------------------------------------------
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 X
1122(d)(4)(xiii) specified in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
Delinquencies, charge-offs and uncollectible accounts are X
recognized and recorded in accordance with the transaction
1122(d)(4)(xiv) agreements.
-----------------------------------------------------------------------------------------------------------------
Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB, is
1122(d)(4)(xv) maintained as set forth in the transaction agreements.
-----------------------------------------------------------------------------------------------------------------
A-3
EXHIBIT B
FORM OF ANNUAL CERTIFICATION
Re: The [ ] agreement dated as of [ ], 200[ ] (the
"Agreement"), among [IDENTIFY PARTIES]
I, ________________________________, the _______________________ of
Countrywide Home Loans, Inc., certify to [the Purchaser], [the Depositor],
[Master Servicer], [Securities Administrator] or [Trustee], and its officers,
with the knowledge and intent that they will rely upon this certification, that:
(1) I have reviewed the servicer compliance statement of the Company
provided in accordance with Item 1123 of Regulation AB (the "Compliance
Statement"), the report on assessment of the Company's compliance with the
servicing criteria set forth in Item 1122(d) of Regulation AB (the
"Servicing Criteria"), provided in accordance with Rules 13a-18 and 15d-18
under Securities Exchange Act of 1934, as amended (the "Exchange Act") and
Item 1122 of Regulation AB (the "Servicing Assessment"), the registered
public accounting firm's attestation report provided in accordance with
Rules 13a-18 and 15d-18 under the Exchange Act and Section 1122(b) of
Regulation AB (the "Attestation Report"), and all servicing reports,
officer's certificates and other information relating to the servicing of
the Mortgage Loans by the Company during 200[ ] that were delivered by the
Company to the [Depositor] [Master Servicer] [Securities Administrator] or
[Trustee] pursuant to the Agreement (collectively, the "Company Servicing
Information");
(2) Based on my knowledge, the Company Servicing Information, 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 the
light of the circumstances under which such statements were made, not
misleading with respect to the period of time covered by the Company
Servicing Information;
(3) Based on my knowledge, all of the Company Servicing Information
required to be provided by the Company under the Agreement has been
provided to the [Depositor] [Master Servicer] [Securities Administrator] or
[Trustee];
(4) I am responsible for reviewing the activities performed by the
Company as servicer under the Agreement, and based on my knowledge and the
compliance review conducted in preparing the Compliance Statement and
except as disclosed in the Compliance Statement, the Servicing Assessment
or the Attestation Report, the Company has fulfilled its obligations under
the Agreement; and
[Intentionally Left Blank]
B-1
(5) The Compliance Statement required to be delivered by the Company
pursuant to this Agreement, and the Servicing Assessment and Attestation
Report required to be provided by the Company and by each Subservicer and
Participating Entity pursuant to the Agreement, have been provided to the
[Depositor] [Master Servicer]. Any material instances of noncompliance
described in such reports have been disclosed to the [Depositor] [Master
Servicer]. Any material instance of noncompliance with the Servicing
Criteria has been disclosed in such reports.
Date:
By: ________________________________
Name: ______________________________
Title:
B-2
