AMENDMENT NUMBER ONE
to the
AMENDED AND RESTATED PURCHASE, WARRANTIES
AND SERVICING AGREEMENT
dated as of December 1, 2004
between
UBS REAL ESTATE SECURITIES
INC.
and
SUNTRUST MORTGAGE, INC.
This AMENDMENT NUMBER ONE is made this
1st day of July, 2005, by and between SunTrust Mortgage, Inc. (the
“ Seller ”) and UBS Real Estate Securities Inc.
(the “ Purchaser ”), to the Amended and Restated
Purchase, Warranties and Servicing Agreement, dated as of December
1, 2004, by and between the Seller and the Purchaser (the “
Agreement ”).
RECITALS
WHEREAS, the Seller and the Purchaser
have agreed to amend the Agreement as set forth herein.
NOW THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, and for the mutual covenants herein contained, the
parties hereto hereby agree as follows:
SECTION 1.
Amendments .
(a)
The third paragraph of the Agreement is
hereby amended by adding the words “and second” between
the words “first” and “lien”.
(b)
Section 1.01 of the Agreement is hereby
amended by adding the following definitions in alphabetical
order:
Combined Loan-to-Value Ratio: With
respect to any Mortgage Loan, the fraction, expressed as a
percentage, the numerator of which is the sum of (a) the original
principal balance of the Mortgage Loan, plus (b) the unpaid
principal balance of any related subordinate mortgage loan or loans
secured by the Mortgaged Property, and the denominator of which is
the Appraised Value of the related Mortgaged Property.
First Lien: With respect to each
Mortgaged Property, the lien of the mortgage, deed of trust or
other instrument securing a Mortgage Note which creates a first
lien on the Mortgaged Property.
Second Lien: With respect to each
Mortgaged Property, the lien of the mortgage, deed of trust or
other instrument securing a Mortgage Note which creates a second
lien on the Mortgaged Property.
Amendment Number One
(UBS-SunTrust)
Second Lien Mortgage Loan: A Mortgage
Loan secured by the lien on the Mortgaged Property, subject to one
prior lien on such Mortgaged Property securing financing obtained
by the related Mortgagor.
Standard & Poor’s:
Standard & Poor’s Rating Services, a division of
The McGraw-Hill Companies Inc., and its successors in
interest.
(c)
Section 1.01 of the Agreement is hereby
amended by adding the following sentence to the end of the
definition of the term “Custodial Account”:
Such accounts shall be held as a special
deposit by the depository institution maintaining the related
accounts in a fiduciary capacity, separate and apart from its funds
or general assets and shall not be held in any capacity that would
create a debtor-creditor relationship between the depository
institution maintaining the accounts and the Seller or the
Purchaser.
(d)
Section 1.01 of the Agreement is hereby
amended by adding the words “second” between the words
“or” and “lien” to the definition of the
term “Mortgage”.
(e)
Section 1.01 of the Agreement is hereby
amended by adding the words “LTV and Combined” between
the words “the” and “Loan-To-Value” to
subsection (7) of the definition of the term “Mortgage Loan
Schedule”.
(f)
Section 1.01 of the Agreement is amended
by deleting the period at the end of subsection (38) of the
definition of the term “Mortgage Loan Schedule”,
replacing such period with a semicolon and adding the following
subsections at the end thereto:
(39) a code indicating if the Mortgage
Loan is an interest-only Mortgage Loan (including any Mortgage
Loans with any interest-only features) and, if so, the term of the
interest-only period of such Mortgage Loan; and
(40) a code indicating whether the
Mortgaged Property is subject to a First Lien or a Second
Lien.
(g)
Section 2.02 of the Agreement is hereby
amended by adding the following after the first sentence of
the second paragraph thereto:
Further, the Seller shall pay to the
Purchaser the costs and fees expected to be associated with the
recording of an Assignment with respect to each Mortgage Loan (such
amount may be set forth in the related Purchase Price and
Terms Letter or UBS Website).
(h)
Section 2.07 of the Agreement is hereby
amended by adding the following words at the end of the text of
third paragraph thereof and before the period at the end of such
paragraph:
(it being understood that any cure period
set forth in Section 3.03 shall be deemed to have
expired)
(i)
Section 3.02 of the Agreement is hereby
amended by deleting subsection (b) and replacing it in its entirety
with the following:
(b)
The Mortgage creates a first lien and
first priority ownership interest, or, with respect to a Mortgage
Loan identified on the related Mortgage Loan Schedule as a Second
Lien Mortgage Loan, a second lien and second priority ownership
interest, in either case, in an estate in fee simple in real
property securing the related Mortgage Note;
(j)
Section 3.02 of the Agreement is hereby
amended by deleting subsection (e) and replacing it in its entirety
with the following:
(h)
The terms of the Mortgage Note and the
Mortgage have not been impaired, waived, altered or modified in any
respect, except by written instruments, recorded in the applicable
public recording office if necessary to maintain the lien priority
of the Mortgage, and which have been delivered to the
Purchaser’s custodian; the substance of any such waiver,
alteration or modification has been approved by the insurer under
the Primary Insurance Policy, if any, and the title insurer, to the
extent required by the related policy, and is reflected on the
related Mortgage Loan Schedule or the UBS Website, as applicable.
No instrument of waiver, alteration or modification has been
executed, and no Mortgagor has been released, in whole or in part,
except in connection with an assumption agreement approved by the
insurer under the Primary Insurance Policy, if any, and the title
insurer, to the extent required by the policy, and which assumption
agreement has been delivered to the Custodian and the terms of
which are reflected in the related Mortgage Loan Schedule or the
UBS Website, as applicable. With respect to each Second Lien
Mortgage Loan (a) the related first lien is in full force and
effect, (b) there is no default, breach, violation or event of
acceleration existing under the related first lien mortgage or the
mortgage note related to such first lien mortgage, (c) either no
consent for the Loan is required by the holder of the first lien or
such consent has been obtained and is contained in the Mortgage
File, (d) no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration under the
related first lien mortgage loan, and either (1) the related first
lien mortgage contains a provision which allows or (2) applicable
law requires, the mortgagee under the Second Lien Mortgage Loan to
receive notice of, and affords such mortgagee an opportunity to
cure any default by payment in full or otherwise under the related
first lien mortgage;
(k)
Section 3.02 of the Agreement is hereby
amended by deleting the period at the end of subsection (i),
replacing such period with a semicolon and adding the following at
the end of thereof:
With respect to each Second Lien Mortgage
Loan (i) the related first lien is in full force and effect, (ii)
there is no default, breach, violation or event of acceleration
existing under the related first lien mortgage or the mortgage note
related to such first lien mortgage, (iii) either no consent for
the Mortgage Loan is required by the holder of the first lien or
such consent has been obtained and is contained in the Mortgage
File, (iv) no event which, with the passage of time or with notice
and the expiration of any grace or cure period, would constitute a
default, breach, violation or event of acceleration under the
related first lien mortgage loan, and either (A) the related first
lien mortgage contains a provision which allows or (B) applicable
law requires, the mortgagee under the Second Lien Mortgage Loan to
receive notice of, and affords such mortgagee an opportunity to
cure any default by payment in full or otherwise under the related
first lien mortgage;
(l)
Section 3.02 of the Agreement is hereby
amended by deleting subsection (j) and replacing it in its entirety
with the following:
(j)
The related Mortgage is a valid,
subsisting, enforceable and perfected first or second lien on the
Mortgaged Property including all buildings on the Mortgaged
Property and all installations and mechanical, electrical,
plumbing, heating and air conditioning systems affixed to such
buildings, and all additions, alterations and replacements made at
any time with respect to the foregoing securing the Mortgage
Note’s original principal balance. The Mortgage and the
Mortgage Note do not contain any evidence of any security interest
or other interest or right thereto. Such lien is free and
clear of all adverse claims, liens and encumbrances having priority
over the first lien of the Mortgage subject only to (1) the lien of
non-delinquent current real property taxes and assessments not yet
due and payable, (2) covenants, conditions and restrictions, rights
of way, easements and other matters of the public record as of the
date of recording which are acceptable to mortgage lending
institutions generally and either (A) which are referred to or
otherwise considered in the appraisal made for the originator of
the Mortgage Loan, or (B) which do not adversely affect the
appraised value of the Mortgaged Property as set forth in such
ap
