EXECUTION VERSION
AMENDMENT REG AB
TO THE AMENDED AND RESTATED MASTER
MORTGAGE LOAN PURCHASE AND
SERVICING AGREEMENT
This is Amendment Reg AB (“
Amendment Reg AB ”), dated as of January 31, 2006, by
and between DB Structured Products, Inc. (the “
Purchaser ”), and Countrywide Home Loans, Inc. (the
“ Company ”) to that certain Amended and
Restated Master Mortgage Loan Purchase and Servicing Agreement
dated as of May 1, 2004 by and between the Company and the
Purchaser, as amended and restated to and including August 1, 2005
(as amended, modified or supplemented, the “
Existing Agreement ”).
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 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.
Master Servicer
: With respect to any Securitization
Transaction, the “master servicer,” if any, identified
in the related transaction documents.
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, 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 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. 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 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 required to be
disclosed under Item 1119 between the Company and any of the
parties listed in Section 2(c)(i)(D)(4)-(9) which are identified in
writing by the Purchaser or Depositor in advance of the
Securitization Transaction pursuant to Section 2(c)(i)(D) of this
Amendment Reg 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;
(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 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.
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),
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 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 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) in
