AMENDMENT NUMBER TWO
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 TWO is made this
28th day of February, 2006, 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)
Section 1.01 of Agreement is hereby
amended by adding the following definitions in alphabetical
order:
Commission: The United States
Securities and Exchange Commission.
Depositor: With respect to any
Securitization Transaction, the person identified in writing to the
Seller by the Purchaser as the depositor for such
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 Seller purchased Mortgage Loans, provided that the
following conditions are satisfied: (i) such Mortgage Loans
were originated pursuant to an agreement between the Seller and
such Person that contemplated that such Person would underwrite
mortgage loans from time to time, for sale to the Seller, in
accordance with underwriting guidelines designated by the Seller
(“Designated Guidelines”) or guidelines that do not
vary materially from such Designated Guidelines; (ii) such Mortgage
Loans were in fact underwritten as described in clause (i) above
and were acquired by the Seller within 180 days after origination;
(iii) either (x) the Designated Guidelines were, at the time such
Mortgage Loans were originated, used by the Seller in origination
of mortgage loans of the same type as the Mortgage Loans for the
Seller’s own account or (y) the Designated Guidelines were,
at the time such Mortgage Loans were underwritten, designated by
the Seller on a consistent basis for use by lenders in originating
mortgage loans to be purchased by the Seller; and (iv) the Seller
employed, at the time such Mortgage Loans were acquired by the
Seller, 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 Persons from which it
purchased mortgage loans properly applied the underwriting criteria
designated by the Seller.
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 involving either (1) a sale or other transfer of some
or all of the Mortgage Loans directly or indirectly by the
Purchaser to an issuing entity in connection with an issuance of
publicly offered or privately placed, rated or unrated
mortgage-backed securities or (2) an issuance of publicly offered
or privately placed, rated or unrated 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.
Seller Information: As defined in
Section 12.07(a).
Servicer: As defined in Section
12.03(c).
Servicing Criteria: The
“servicing criteria” set forth in Item 1122(d) of
Regulation AB, for which the Seller is responsible in its capacity
as Servicer and as identified on Exhibit K hereto.
Static Pool Information: Static
pool information as described in Item 1105(a)(1)-(3) and 1105(c) 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 Seller or
a Subservicer.
Third-Party Originator: Each
Person, other than a Qualified Correspondent, that originated
Mortgage Loans acquired by the Seller.
Whole Loan Transfer: Any sale or
transfer by the Purchaser of some or all of the Mortgage Loans,
other than a Securitization Transaction.
(b)
Section 1.01 of Agreement is hereby
amended by deleting the definition of “Reconstitution”
in its entirety and replacing it with the following:
Reconstitution: Any Securitization
Transaction or Whole Loan Transfer.
(c)
Section 1.01 of Agreement is hereby
amended by deleting the definition of “Subservicer” in
its entirety and replacing it with the following:
Subservicer: Any Person that
services Mortgage Loans on behalf of the Seller 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 identified in Item 1122(d) of
Regulation AB that are required to be performed by the Seller under
this Agreement or any Reconstitution Agreement.
(d)
Section 6.04(C) of Agreement is hereby
amended by deleting the words “Pass-Through Transfer or other
securitization transaction” in the first sentence thereof and
replacing them with the words “Securitization
Transaction”.
(e)
Section 11.17 of Agreement is hereby
amended by deleting the first sentence thereof and replacing it
with the following:
“The Seller and the Purchaser agree
that with respect to some or all of the Mortgage Loans, on or after
the Closing Date, on one or more dates (each a
“Reconstitution Date”) at the Purchaser’s sole
option, the Purchaser may effect a Reconstitution of some or all of
the Mortgage Loans then subject to this Agreement, without
recourse.”
(f)
Section 11.17 of Agreement is hereby
amended by deleting each of every occurrence of the words
“Pass-Through Transfer” therein and replacing them, in
each case, with the words “Securitization
Transaction”.
(g)
The Agreement is hereby amended by adding
the following Article XII immediately following Article
XI:
ARTICLE XII
COMPLIANCE WITH REGULATION AB
Section 12.01
Intent of the Parties;
Reasonableness .
The Purchaser and the Seller acknowledge
and agree that the purpose of Article XII of this Agreement is to
facilitate compliance by the Purchaser, any Master Servicer and any
Depositor with the provisions of Regulation AB and related rules
and regulations of the Commission. Although Regulation AB is
applicable by its terms only to offerings of asset-backed
securities that are registered under the Securities Act, the Seller
acknowledges that investors in privately offered securities may
require that the Purchaser, any Master Servicer or any Depositor
provide comparable disclosure in unregistered offerings.
References in this Agreement to compliance with Regulation AB
include 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, in each case, the rules and regulations of the
Commission thereunder (or the provision in a private offering of
disclosure comparable to that required under the Securities Act)
and the Sarbanes-Oxley Act. The Seller 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, consensus among participants in the
asset-backed securities markets, advice of counsel, or otherwise,
and agrees to comply with reasonable requests made by the
Purchaser, any Master Servicer or any Depositor in good faith 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 Seller shall
cooperate fully with the Purchaser and any Master Servicer to
deliver to the Purchaser (including any of its assignees or
designees), any Master Servicer and any Depositor, any and all
statements, reports, certifications, records and any other
information necessary in the good faith determination of the
Purchaser, any Master Servicer or any Depositor to permit the
Purchaser, such Master Servicer or such Depositor to comply with
the provisions of Regulation AB, together with such disclosures
relating to the Seller, 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 (including any of its
assignees or designees) shall cooperate with the Seller by
providing timely notice of requests for information under these
provisions and by reasonably limiting such requests to information
required, in the Purchaser’s reasonable judgment, to comply
with Regulation AB.
For the purposes of this Article XII, any
notice or request that must be “in writing” or
“written” may be made by electronic mail.
Section 12.02
Additional Representations and
Warranties of the Seller .
(a)
The Seller shall be deemed to represent
to the Purchaser, to any Master Servicer and to any Depositor, as
of the date on which information is first provided to the
Purchaser, any Master Servicer or any Depositor under Section 12.03
that, except as disclosed in writing to the Purchaser, such Master
Servicer or such Depositor prior to such date: (i) the Seller
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
Seller; (ii) the Seller 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 Seller as servicer has
been disclosed or reported by the Seller; (iv) no material changes
to the Seller’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 Seller’s financial condition that
are reasonably expected to have a material adverse effect on the
performance by the Seller 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 Seller, any Subservicer or any
Third-Party Originator; and (vii) there are no affiliations,
relationships or transactions relating to the Seller, any
Subservicer or any Third-Party Originator with respect to any
Securitization Transaction and any party thereto identified in
writing to the Seller by the related Depositor of a type described
in Item 1119 of Regulation AB.
(b)
If so requested by the Purchaser , any
Master Servicer or any Depositor on any date following the date on
which information is first provided to the Purchaser, any Master
Servicer or any Depositor under Section 12.03, the Seller shall,
within five Business Days following such request, confirm in
writing the accuracy of the representations and warranties set
forth in paragraph (a) 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.
Section 12.03.
Information to Be Provided by the
Seller .
In connection with any Securitization
Transaction the Seller shall (i) 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
and in form and substance reasonably satisfactory to the Purchaser
and such Depositor, the information and materials specified in
paragraphs (a), (b), (c) and (g) of this Section, and (ii) as
promptly as practicable following notice to or discovery by the
Seller, provide to the Purchaser and any Depositor (in writing and
in form and substance reasonably satisfactory to the Purchaser and
such Depositor) the information specified in paragraph (d) of this
Section.
(a)
If so requested by the Purchaser or any
Depositor, the Seller shall provide such information regarding (i)
the Seller, as originator of the Mortgage Loans (including as an
acquirer of Mortgage Loans from a Qualified Correspondent), or (ii)
each Third-Party Originator, and (iii) as applicable, each
Subservicer, as is reasonably requested for the purpose of
compliance with Items 1103(a)(1), 1105, 1110, 1117 and 1119 of
Regulation AB. Such information may include, if
applicable:
(A)
the originator’s form of
organization;
(B)
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;
information regarding the size and composition of the
originator’s origination portfolio; and information that may
be material, in the good faith 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 description of any material legal or
governmental proceedings pending (or known to be contemplated)
against the Seller, each Third-Party Originator and each
Subservicer; and
(D)
a description of any affiliation or
relationship between the Seller, each Third-Party Originator, each
Subservicer and any of the following parties to a Securitization
Transaction, as such parties are identified to the Seller by the
Purchaser or any Depositor in writing 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.
(b)
If so requested by the Purchaser or any
Depositor, the Seller 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 (i) the Seller, if the Seller is an originator of
Mortgage Loans (including as an acquirer of Mortgage Loans from a
Qualified Correspondent), and/or (ii) each Third-Party Originator.
Such Static Pool Information shall be prepared by the Seller
(or Third-Party Originator) on the basis of its reasonable, good
faith interpretation of the requirements of Item 1105(a)(1)-(3) of
Regulation AB, which good faith interpretations shall not be
inconsistent with what is customarily determined by originators of
Mortgage Loans to be required pursuant to Item 1105(a)(1)-(3) of
Regulation AB. To the extent that there is reasonably
available to the Seller (or Third-Party Originator) 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 Seller, 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 required by the Purchaser or the Depositor, as
applicable.
Promptly following notice or discovery of
a material error 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 Seller 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 Seller.
If so requested by the Purchaser or any
Depositor, the Seller 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), such
statements and agreed-upon procedures letters of certified public
accountants reasonably acceptable to the Purchaser or Depositor, as
applicable, 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
Seller’s or 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 may include, by way of example, any Sponsor, any Depositor
and any broker dealer acting as underwriter, placement agent or
initial purchaser with respect to 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.
(c)
If so requested by the Purchaser or any
Depositor, the Seller shall provide such information regarding the
Seller, as servicer of the Mortgage Loans, and each Subservicer
(each of the Seller 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 may include, if
applicable:
(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 good faith judgment 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 Seller 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 description of any material legal or
governmental proceedings pending (or known to be contemplated)
against the Servicer; and
(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
the Servicer by the Purchaser or any Depositor in writing in
advance of such Securitization Transaction:
(1)
the sponsor;
(2)
the depositor;
(3)
the issuing
