AMENDMENT REG AB TO THE MASTER MORTGAGE LOAN PURCHASEAND SERVICING AGREEMENT
EXECUTION
VERSION
AMENDMENT
REG AB
TO
THE
MASTER MORTGAGE LOAN PURCHASEAND SERVICING AGREEMENT
This
is
Amendment Reg AB (“Amendment
Reg AB”),
dated
as of January 1, 2006 by and between Xxxxxxx Xxxxx Mortgage Company (the
“Purchaser”), and
Countrywide Home Loans, Inc. (the “Company”)
to
that certain Master Mortgage Loan Purchase Agreement dated as of July 1, 2004
by
and between the Company and the Purchaser and that certain Servicing Agreement
dated as of July 1, 2004 by and between Countrywide Home Loans Servicing, LP
and
the Purchaser (as amended, modified or supplemented, the “Existing
Agreement”).
WITNESSETH
WHEREAS,
the Company and the Purchaser have agreed, subject to the terms and conditions
of this Amendment Reg AB that the Existing Agreement 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 the 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 Agreement. The 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.
§§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” shall not include any master
servicer, or any special servicer engaged at the request of a Depositor,
Purchaser or investor in a Securitization Transaction (unless such master
servicer or special servicer has sole contractual privity with the Company),
nor
any “back-up servicer” or trustee performing servicing functions on behalf of a
Securitization Transaction.
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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 the 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. Because Regulation AB is applicable by its terms only to offerings
of asset-backed securities that are registered under the Securities Act and
there are market uncertainties with respect to the disclosure that investors
in
privately offered securities may request, the parties agree over time to
negotiate in good faith with respect to the provision of comparable disclosure
in private offerings.
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, 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.
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(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
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.
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(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 (ii) below), 1110, 1117 and 1119
of
Regulation AB. Such information shall include, at a minimum:
(A) the
originator’s form of organization;
(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 eight 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.
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(ii) If
so
requested by the Purchaser or any Depositor, and 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 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 reasonably agreeable to the Company,
the
Purchaser and the Depositor.
Promptly
following notice or discovery of a material error, as determined in the
Company’s judgment, 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) during the
applicable offering period for the securities, 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), industry standard 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.
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(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 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;
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(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 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) If
reasonably requested by the Purchaser or any Depositor 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) notify the
Purchaser and any Depositor in writing of (1) any material litigation or
governmental proceedings pending against the Company, any Subservicer or any
Third-Party Originator and (2) any affiliations or relationships that develop
following the closing date of a Securitization Transaction between the Company,
any Subservicer or any Third-Party Originator and any of the parties specified
in clause (D) of paragraph (i) of this Section 2(c) (and any other parties
identified in writing by the requesting party) with respect to such
Securitization Transaction, and (b) provide to the Purchaser and any Depositor
a
description of such proceedings, affiliations or relationships.
(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.
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(vi) In
addition to such information as the Company, as servicer, is obligated to
provide pursuant to other provisions of this Agreement, if reasonably requested
by the Purchaser or any Depositor, the Company shall provide such information,
regarding the servicing of the Mortgage Loans as is reasonably required to
facilitate preparation of distribution reports in accordance with Item 1121
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 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 applicable Servicing Criteria specified on a certification
substantially in the form of Exhibit A hereto delivered to the Purchaser
concurrently with the execution of this Agreement;
(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;
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(C) cause
each Subservicer and each Subcontractor pursuant to Section 2(f)(ii) that
“participates 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 in the form attached hereto as
Exhibit A; provided that such certification delivered by the Company may not
be
filed as an exhibit to, or included in, any filing with the Commission, unless
required by applicable law.
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 applicable Servicing Criteria specified
on
a certification substantially in the form of Exhibit A hereto delivered to
the
Purchaser concurrently with the execution of this Agreement or, in the case
of a
Subservicer subsequently appointed as such, on or prior to the 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 to the same extent as if such Subservicer were the
Company, 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.
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(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 promptly upon request provide to the Purchaser and any
Depositor (or any designee of the Depositor, such as a master servicer or
administrator) 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 to the same extent as if such
Participating Entity were the Company. 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.
(i) The
Company
shall
indemnify the Purchaser, 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 of the Depositor, 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
written information, written report, certification or other material
provided
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;
11
(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 Agreement, including
any failure by the Company to identify pursuant to Section 2(f)(ii) any
Participating Entity; or
(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.
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, 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 the applicable Subservicer, Subcontractor, or Third-Party Originator 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 prior to
the
date of such termination. 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.
12
(B) Any
failure by the Company, any Subservicer or any Participating Entity to
deliver any information, report, certification or accountants’ letter required
under Regulation AB 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 nine calendar days after receipt by the Company and the
applicable Subservicer, Subcontractor, or Third-Party Originator of written
notice of such failure from the Purchaser or Depositor 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 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 prior to
the
date of such termination. 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.
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 Existing
Agreement.
4. The
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 Existing Agreement as amended
by this Amendment Reg AB. Except as expressly amended and modified by this
Amendment Reg AB, the 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 Existing Agreement, this Amendment Reg AB shall
control.
13
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.
[Signature
Page Follows]
14
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.
|
XXXXXXX
XXXXX MORTGAGE COMPANY
Purchaser
|
||
| |
|
|
| By: | ||
|
Name:____________________________________
Title:
____________________________________
|
||
|
|
COUNTRYWIDE
HOME
LOANS, INC.
Company
|
|
| |
|
|
| By: | ||
|
Name:___________________________________
Title:
____________________________________
|
||
Signature
page to Amendment Reg AB
EXHIBIT
A
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 Depositor][or] [Master Servicer], 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] [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] [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 in all material
respects; and
(5) The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Servicing Assessment and Attestation Report required to
be
provided by the Company and by any Subservicer or Subcontractor 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.
A-1
| Date: | ____________________________ | |
| By: | ||
|
Name:
Title:
|
||
A-2
EXHIBIT
B
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”:
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
|
General
Servicing Considerations
|
|
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on
the party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
|
|
|
Cash
Collection and Administration
|
|
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two
business days
following receipt, or such other number of days specified in
the
transaction agreements.
|
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are
made,
reviewed and approved as specified in the transaction
agreements.
|
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are
separately
maintained (e.g., with respect to commingling of cash) as set
forth in the
transaction agreements.
|
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities
Exchange
Act.
|
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
|
B-1
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank
clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling
items. These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the
transaction
agreements.
|
|
|
|
Investor
Remittances and Reporting
|
|
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and
applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the
terms specified in the transaction agreements; (C) are filed
with the
Commission as required by its rules and regulations; and (D)
agree with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
|
|
|
Pool
Asset Administration
|
|
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the
transaction
agreements
|
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
|
|
1122(d)(4)(iv)
|
Payments
on 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 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 loan documents.
|
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
|
B-2
|
Servicing
Criteria
|
Applicable
Servicing Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor's mortgage
loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions,
as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including,
for example,
phone calls, letters and payment rescheduling plans in cases
where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with
variable
rates are computed based on the related mortgage loan
documents.
|
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s 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 such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that
such support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of
days
specified in the transaction agreements.
|
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|
B-3
|
[NAME
OF COMPANY] [NAME OF SUBSERVICER]
|
||
| |
|
|
| Date: | _______________________________________ | |
| By: | ||
|
Name: ____________________________________
Title:
_____________________________________
|
||
B-4
