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EXECUTION COPY
AMENDED AND RESTATED AMENDMENT REG AB
TO THE MORTGAGE LOAN PURCHASE AND SERVICING AGREEMENT
This is Amended and Restated Amendment Reg AB
(“ Amendment Reg AB ”), dated as of March 1,
2006, by and between UBS Real Estate Securities, Inc. (the
“ Purchaser ”), and Countrywide Home Loans,
Inc. (the “ Company ”) amends, restates and
replaces in its entirety that certain Amendment Reg AB (the
“Original Amendment”), dated as of March 1, 2006, by
and between the Purchaser and the Company, to that certain
Mortgage Loan Purchase and Servicing Agreement dated as of
November 1, 2001 by and between the Company and the Purchaser
(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 effective as of the date
hereof 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, unrated or 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 of Regulation AB.
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 and Section 302 of the
Sarbanes Oxley Act. Although Regulation AB is applicable
by its terms only to offerings of asset-backed securities that
are registered under the Securities Act, the parties acknowledge
that investors in privately offered securities may require that
the Purchaser or any Depositor provide comparable disclosure in
unregistered offerings. The parties agree over time to
negotiate in good faith with respect to the provision of
comparable disclosure in private offerings. 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 established and 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 reasonably believed by
the Purchaser or any Depositor to be 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 limit requests for information, reports or any other
materials to items required for compliance with Regulation AB in
the Purchaser’s reasonable judgment, 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, any Subservicer or any
Third-Party Originator and any of the parties listed in Section
2(c)(i)(D)(1)-(6) 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 five 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 five 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), (vi) and (vii) 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)(i) the Company, as originator of the Mortgage Loans
(including as an acquirer of Mortgage Loans from a Qualified
Correspondent, if applicable), or (ii) as applicable, each
Third-Party Originator, and (y) 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 (as determined by
Purchaser or any Depositor in its reasonable judgment), 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
determined by Purchaser or any Depositor in its reasonable
judgment to be material, information regarding the size and
composition of the originator’s origination portfolio; and
information that may be material, in the reasonable judgment of
the Purchaser or any Depositor, 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
five days in advance of such Securitization Transaction:
(1)
any servicer;
(2)
any trustee;
(3)
any originator;
(4)
any significant obligor;
(5)
any enhancement or support provider; and
(6)
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),
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. If reasonably requested by the
Purchaser, the Company shall reasonably cooperate with the
Purchaser with regard to a request by the Purchaser for
additional procedures letters from such certified public
accountants pertaining to Static Pool Information pursuant to
this paragraph; provided, however, it is acknowledged and agreed
upon by the Purchaser that the Company shall not be liable for
the failure of such certified public accountants to comply with
such Purchaser 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, 1117 and 1119 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;
(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;
(I)
a brief description of any material legal or
governmental proceedings pending (or known to be contemplated by
a governmental authority) against the Servicer;
(J)
a description of any affiliation or relationship between the
Servicer and any of the following parties to a Securitization
Transaction, as such parties are identified to Servicer by the
Purchaser or any Depositor in writing in advance of such
Securitization Transaction:
(1)
any servicer;
(2)
any trustee;
(3)
any originator;
(4)
any significant obligor;
(5)
any enhancement or support provider; and
(6)
any other material transaction party.
(iv)
For the purpose of satisfying the 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 that qua
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