AMENDMENT NO. 1 TO THE POOLING AND SERVICING AGREEMENT, SERIES 2002-1
THIS AMENDMENT NO. 1, dated as of February 20, 2004, to THE POOLING AND
SERVICING AGREEMENT, dated as of March 1, 2002 ("Amendment No. 1") is entered
into by and among Bear Xxxxxxx Asset Backed Securities, Inc., a Delaware
corporation (the "Depositor"), American Business Credit, Inc., a Pennsylvania
corporation ("ABC"), and JPMorgan Chase Bank, a New York banking corporation, as
trustee and collateral agent (the "Trustee").
WHEREAS, pursuant to the Pooling and Servicing Agreement, dated as of
March 1, 2002 (the "Servicing Agreement"), by and among the Depositor, ABC, as
Servicer and the Trustee, ABC agreed to service and administer the Mortgage
Loans in accordance with accepted servicing practices as provided therein;
WHEREAS, Ambac Assurance Corporation (the "Certificate Insurer") has
issued a Certificate Insurance Policy (as defined in the Servicing Agreement)
for the benefit of the Holders of the Class A Certificates and, pursuant to
Section 7.04 of the Servicing Agreement, is entitled to exercise all rights
granted to the Majority Certificateholders and is entitled to remove the
Servicer upon the occurrence of an Event of Default set forth in Section 7.01(a)
of the Servicing Agreement;
WHEREAS, an Event of Default under Section 7.01(a)(x) of the Servicing
Agreement has occurred and is continuing and the Certificate Insurer is entitled
to remove ABC as Servicer in accordance with such Section;
WHEREAS, in consideration for entering into this Amendment No. 1, the
Certificate Insurer has agreed to waive such Event of Default and not exercise
its right to remove ABC as Servicer at this time;
WHEREAS, ABC, the Depositor, the Trustee and the Certificate Insurer
have agreed that they mutually desire to provide for term servicing as provided
for herein;
WHEREAS, the Depositor, ABC and the Trustee desire to amend certain
provisions of the Servicing Agreement as set forth in this Amendment No. 1 in
accordance with Section 11.03(b) of the Servicing Agreement and the Certificate
Insurer on behalf of itself and as the party entitled to exercise the rights of
the Majority Certificateholders hereby consents to such amendments;
NOW, THEREFORE, in consideration of the mutual agreements contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. Defined Terms. Any capitalized term used herein and not defined
herein shall have the meanings assigned to such term in the Servicing Agreement.
2. Amendment to Section 1.01. The following definitions shall be added
to Section 1.01 of the Servicing Agreement:
Servicing Extension Notice: As defined in Section 7.08(b).
Servicing Period: As defined in Section 7.08(b).
3. Amendments to Article VII.
(A) Section 7.02 of the Servicing Agreement is deleted in its entirety
and replaced with the following:
"Section 7.02 Trustee to Act; Appointment of Successor. (a) On and
after the time the Servicer receives a notice of termination pursuant to Section
7.01, the Servicer fails to receive a Servicing Extension Notice in accordance
with Section 7.08 or, the Trustee receives the resignation of the Servicer
evidenced by an Opinion of Counsel pursuant to Section 5.21, the Trustee shall
promptly notify the Rating Agencies and the Certificate Insurer and, except as
otherwise provided in Section 7.01, the Trustee or such other Person as may be
specified by the Certificate Insurer shall be the successor in all respects to
the Servicer in its capacity as servicer under this Agreement and the
transactions set forth or provided for herein and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer
by the terms and provisions hereof arising on or after the date of succession;
provided, however, that the Trustee shall not be liable for any actions or
omissions or the representations and warranties of any prior Servicer,
including, without limitation, the obligations of the Servicer set forth in
Sections 2.06 and 3.03. The Trustee, as successor servicer, shall be obligated
to pay Compensating Interest pursuant to Section 6.09 in any event and to make
advances pursuant to Section 5.18 unless, and only to the extent the Trustee
determines reasonably and in good faith that such advances would not be
recoverable pursuant to Section 5.04, such determination to be evidenced by a
certification of a Responsible Officer of the Trustee delivered to the
Certificate Insurer. Notwithstanding its prior termination, the Servicer shall
continue servicing until such time as the succession of a successor servicer is
complete.
(b) Notwithstanding the above, the Trustee may, if it shall be
unwilling to so act, or shall, if it is unable to so act or if the Certificate
Insurer so requests in writing to the Trustee, appoint, pursuant to such
direction of the Certificate Insurer, or if no such direction is provided to the
Trustee, pursuant to the provisions set forth in paragraph (c) below, or
petition a court of competent jurisdiction to appoint, any established mortgage
loan servicing institution acceptable to the Certificate Insurer that has a net
worth of not less than $15,000,000 as the successor to the Servicer hereunder in
the assumption of all or any part of the responsibilities, duties or liabilities
of the Servicer hereunder.
(c) In the event the Trustee is the successor servicer, it shall be
entitled to the same Servicing Compensation (including the Servicing Fee as
adjusted pursuant to the definition thereof) and other funds pursuant to Section
5.08 hereof as the Servicer if the Servicer had continued to act as servicer
hereunder. In the event the Trustee is unable or unwilling to act as successor
servicer, and a successor servicer is not appointed by the Certificate Insurer,
the Trustee shall solicit, by public announcement, bids from housing and home
finance institutions, banks and mortgage servicing institutions meeting the
qualifications set forth above and acceptable to the Certificate Insurer. Such
public announcement shall specify that the successor servicer shall be entitled
to the full amount of the aggregate Servicing Fees hereunder as servicing
compensation, together with the other Servicing Compensation. After any such
public announcement, the Trustee shall negotiate and effect the sale, transfer
and assignment of the servicing rights and responsibilities hereunder to the
qualified party submitting the highest qualifying bid. The Trustee shall deduct
from any sum received by the Trustee from the successor to the Servicer in
respect of such sale, transfer and assignment all costs and expenses of any
public announcement and of any sale, transfer and assignment of the servicing
rights and responsibilities hereunder and the amount of any unreimbursed
Servicing Advances and Periodic Advances owed to the Trustee. After such
deductions, the remainder of the proceeds of such sale shall be paid by the
Trustee to the Servicer at the time of such sale, transfer and assignment to the
Servicer's successor.
(d) The Trustee and such successor servicer shall take such
action, consistent with this Agreement, as shall be necessary to effectuate any
such succession. The Servicer agrees to deliver promptly to such successor,
electronically or physically, as the case may be, all files, data and funds
related to the Mortgage Loans. The Servicer agrees to cooperate with the Trustee
and any successor servicer in effecting the termination of the Servicer's
servicing responsibilities and rights hereunder and shall promptly provide the
Trustee or such successor servicer, as applicable, at the Servicer's cost and
expense, all documents and records reasonably requested by it to enable it to
assume the Servicer's functions hereunder and shall promptly also transfer to
the Trustee or such successor servicer, as applicable, all amounts that then
have been or should have been deposited in the Collection Account by the
Servicer or that are thereafter received with respect to the Mortgage Loans. Any
collections received by the Servicer after such removal or resignation shall be
endorsed by it to the Trustee and remitted directly to the Trustee or, at the
direction of the Trustee, to the successor servicer. Neither the Trustee nor any
successor servicer shall be held liable by reason of any failure to make, or any
delay in making, any distribution hereunder or any portion thereof caused by (i)
the failure of the Servicer to deliver, or any delay in delivering, cash,
documents, files, data or records to it, or (ii) restrictions imposed by any
regulatory authority having jurisdiction over the Servicer hereunder. The
Trustee shall not resign as servicer until a successor servicer reasonably
acceptable to the Certificate Insurer has been appointed or until a successor
servicer has been appointed in accordance with paragraph (c) above. The
Certificate Insurer shall have the right to remove the Trustee (or any successor
Servicer) as successor Servicer under this Section 7.02 without cause, and the
Trustee shall appoint such other successor Servicer as directed in writing by
the Certificate Insurer.
(e) Pending appointment of a successor to the Servicer
hereunder, the Trustee shall act in such capacity as hereinabove provided. In
connection with such appointment and assumption, the Trustee may make such
arrangements for the compensation of such successor out of payments on Mortgage
Loans as the Certificate Insurer and such successor shall agree; provided,
however, that unless otherwise agreed by the Certificate Insurer, no such
compensation shall be in excess of that permitted the Servicer pursuant to
Section 5.08, together with other Servicing Compensation. The Servicer, the
Trustee and such successor shall take such action, consistent with this
Agreement, as shall be necessary to effectuate any such succession."
(B) The following Section 7.08 shall be added at the end of
Article VII of the Servicing Agreement:
"Section 7.08. Term Servicing. (a) Notwithstanding anything to the
contrary herein, at the direction of the Certificate Insurer, the Trustee
designates ABC as the Servicer of the Mortgage Loans under this Agreement for a
term of twenty-five days, commencing on February 20, 2004 and ending on March
15, 2004. The Trustee, at the direction of the Certificate Insurer, hereby
retains ABC to perform all duties and obligations of the Servicer with respect
to the Mortgage Loans under this Agreement, in accordance with the terms hereof,
all applicable laws and regulations, and the terms of all related documents
pursuant to which ABC has acted prior to the date hereof. ABC hereby assumes the
due and punctual performance and observance of each covenant and condition to be
performed or observed by the Servicer with respect to the Mortgage Loans under
this Agreement.
(b) The Certificate Insurer may, in its sole discretion, send a written
notice (each such notice, a "Servicer Extension Notice"), to ABC and the
Trustee, extending any such term for one or more terms of one calendar month, or
such longer terms as may be specified therein by the Certificate Insurer (each,
a "Servicing Period"). Any Servicer Extension Notice shall be delivered to such
parties no later than ten (10) Business Days prior to the expiration of the
existing Servicing Period; provided, however, that any such Servicer Extension
Notice that extends the terms under this Agreement is revocable by the
Certificate Insurer, in its sole discretion, upon the occurrence of an Event of
Default. The Servicer hereby agrees that, as of the date hereof and upon its
receipt of any such Servicer Extension Notice prior to the expiration of the
existing Servicing Period, the Servicer shall be bound for the duration of the
initial term and each successive term covered by such Servicer Extension Notice
to act as the Servicer of the Mortgage Loans hereunder, unless the Servicer is
otherwise terminated in accordance with Section 7.01 hereof. If a Servicer
Extension Notice is delivered after the expiration of the existing Servicing
Period, the Trustee, the Certificate Insurer and the Servicer may agree that the
Servicer shall be bound for the Servicing Period covered by such Servicer
Extension Notice to act as the Servicer of the Mortgage Loans hereunder, unless
the Servicer is otherwise terminated in accordance with Section 7.01 hereof.
Unless a Servicer Extension Notice is sent, all of the Servicer's rights and
obligations under this Agreement and with respect to the Mortgage Loans shall
automatically expire without any further action on the part of any party.
(c) In the event the Trustee has not received a Servicer Extension
Notice from the Certificate Insurer on or before the date that is ten (10)
Business Days prior to the expiration of the existing Servicing Period, then the
Trustee may notify the Certificate Insurer to that effect and inquire as to
whether the Certificate Insurer will send or direct the Trustee to send a
Servicer Extension Notice.
(d) Subject to the cooperation of the Servicer and the delivery of the
files, documents and data as provided in Section 7.02(d) herein, on and after
the time the Servicer receives a notice of termination pursuant to Section 7.01
or fails to receive a Servicer Extension Notice pursuant to Section 7.08(b) and
transfer of servicing has been completed, the Trustee or such other successor
appointed by the Certificate Insurer shall be the successor in all respects to
the Servicer in its capacity as Servicer under this Agreement and the
transactions set forth or liabilities relating thereto and arising thereafter
placed on the Servicer (except for any representations or warranties of the
Servicer) under this Agreement by the terms and provisions hereof.
(e) Notwithstanding anything to the contrary herein, this Section 7.08
shall only apply to ABC as Servicer and not to any successor servicer."
4. Each party represents as to itself that it has duly and validly
executed and delivered this Amendment No. 1 and that, assuming this Amendment
No. 1 has been duly and validly executed and delivered by the other party
hereto, this Amendment No. 1 constitutes the legal, valid and binding obligation
of such party, enforceable against it in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors rights generally and by general equitable
principles (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
5. Except as modified herein, each of the parties hereto acknowledges
and agrees that it continues to be bound by each of the terms and provisions of
the Servicing Agreement, which terms and provisions, as amended hereby, shall
continue in full force and effect.
6. If one or more of the provisions, agreements or terms of this
Amendment No. 1 shall be for any reason whatsoever held invalid, then such
provisions, agreements or terms shall be deemed severable from the remaining
provisions, agreements or terms of this Amendment No. 1 and shall in no way
affect the validity or enforceability of the other provisions of this Amendment
No. 1, the Servicing Agreement, or the rights of the parties hereto or thereto.
7. This Amendment No. 1 may be executed in one or more counterparts,
all of which shall be considered one and the same agreement, and shall become
effective when one or more counterparts have been signed by each of the parties
and delivered to the other parties, it being understood that both parties need
not sign the same counterpart.
8. This Amendment No. 1 shall be governed by and construed in
accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, each of the parties has caused this Amendment No. 1
to be duly executed on its behalf as of the day and year first above written.
BEAR XXXXXXX ASSET BACKED
SECURITIES, INC., as Depositor
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
AMERICAN BUSINESS CREDIT, INC.,
as Servicer
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Executive Vice President
JPMORGAN CHASE BANK, not in its
individual capacity but solely
as Indenture Trustee and
Collateral Agent
By: /s/ Xxxx Xxxxxxx
-----------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
AMBAC ASSURANCE CORPORATION, as
Certificate Insurer and as the
party entitled to exercise the
voting rights of the Majority
Certificateholders in
accordance with Section 7.04 of
the Servicing Agreement
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Vice President
The Certificateholders named below hereby consent to this Amendment No. 1 to the
Pooling and Servicing Agreement.
ABFS WAREHOUSE TRUST 2003-1,
as Class R Certificateholder
By: WILMINGTON TRUST COMPANY,
not in its individual capacity,
but solely as Owner Trustee
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Financial Services Officer
FORM OF SERVICER EXTENSION NOTICE
______, 20__
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Institutional Trust Services - ABFS 2002-1
American Business Credit, Inc.
c/o American Business Financial Services, Inc.
The Xxxxxxxxx Building
000 Xxxx Xxxxxx Xxxx, 0xx Xxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: General Counsel
Re: ABFS MORTGAGE LOAN TRUST 2002-1
To Whom It May Concern:
Reference is made to the Pooling and Servicing Agreement, dated as of
March 1, 2002, as amended (the "Agreement"), by and among Bear Xxxxxxx Asset
Backed Securities, Inc., as Depositor, American Business Credit, Inc., as
Servicer and JPMorgan Chase Bank, as Trustee and Collateral Agent. Pursuant to
Section 7.08(b) of the Agreement, Ambac Assurance Corporation hereby notifies
you of the extension of the Servicing Period for ___ term(s).
Please feel free to contact Xxx Xxxxxxxx or myself with any questions
or comments you may have concerning this matter. I can be reached at (212)
208-3376, and Xxx Xxxxxxxx at (000) 000 0000.
Respectfully,
Xxxxx Xxxxx
First Vice President
Consumer Asset Backed Securities
Specialized Finance Portfolio Risk Management
