STRUCTURED ASSET MORTGAGE INVESTMENTS II INC., Depositor CITIBANK, N.A., Trustee
Execution Copy
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.,
Depositor
CITIBANK,
N.A.,
Trustee
XXXXX
FARGO BANK, NATIONAL ASSOCIATION,
Master
Servicer and Securities Administrator
EMC
MORTGAGE CORPORATION,
Sponsor
and Company
AMENDMENT
NO. 2
dated as
of February 17, 2010
Amending
the
among the
Depositor, the Trustee, the Master Servicer, the Securities Administrator,
the
Company and the Sponsor
Company and the Sponsor
Dated as
of July 1, 2006
as
amended by Amendment No. 1 dated as of October 24, 2006
STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC.
Bear
Xxxxxxx Alt-A Trust, 2006-5,
Mortgage
Pass-Through Certificates, Series 2006-5
1
AMENDMENT NO. 2 (the “Amendment”),
dated as of the 17th day of February, 2010, to the Agreement (defined
below). Capitalized terms used herein shall have the meanings given
thereto in the Agreement.
WHEREAS, STRUCTURED ASSET MORTGAGE
INVESTMENTS II INC., as depositor (the “Depositor”), CITIBANK, N.A., as trustee
(the “Trustee”), XXXXX FARGO BANK, NATIONAL ASSOCIATION, as master servicer (in
such capacity, the “Master Servicer”), and as securities administrator (in such
capacity, the “Securities Administrator”) and EMC MORTGAGE CORPORATION, as
sponsor (in such capacity, the “Sponsor”), and as company (in such capacity, the
“Company”), entered into a Pooling and Servicing Agreement, dated as of July 1,
2006 (the “Pooling and Servicing Agreement”), providing for the issuance of Bear
Xxxxxxx ALT-A Trust 2006-5, Mortgage Pass-Through Certificates Series 2006-5
(the “Certificates”); and
WHEREAS, the Company, the Depositor,
the Master Servicer, the Securities Administrator and the Trustee entered into
an amendment to the Pooling and Servicing Agreement, dated as of October 24,
2006 (“Amendment No. 1” and, together with the Pooling and Servicing Agreement,
the “Agreement”); and
WHEREAS, Section 11.02(a)(iii) of the
Agreement permits the amendment of the Agreement by the Company, the Depositor,
the Master Servicer, the Securities Administrator and the Trustee, without
notice to or the consent of any of the Certificateholders, to conform any
provisions of the Agreement to the provisions in the Prospectus, dated March 28,
2006, as supplemented by the Prospectus Supplement dated July 31, 2006
(collectively, the “Prospectus”), relating to the offering of the Offered
Certificates; and
WHEREAS, Section 6.04(b) eighth and ninth of the Agreement do not
conform to the provisions of the Prospectus; and
WHEREAS, an Opinion of Independent
Counsel has been rendered to the effect that, based on the qualifications and
assumptions set forth therein, the Amendment is permitted under the Agreement;
and
WHEREAS, the execution of this
Amendment has been duly authorized by the Company, the Depositor, the Master
Servicer, the Securities Administrator and the Trustee; and
NOW THEREFORE, the Company, the
Depositor, the Master Servicer, the Securities Administrator and the Trustee
hereby agree as follows:
Section
1. The Agreement is hereby amended as follows (emphasis added
to show changes):
Section
6.04(b) of the Agreement is hereby deleted in its entirety and replaced with the
following:
(b)
(i) With
respect to any Group II Certificates on any Distribution Date, the principal
portion of each Realized Loss on a Group II Mortgage Loan shall be allocated as
follows:
first, to the
Class II-B-6 Certificates until the Certificate Principal Balance thereof
has been reduced to zero;
second, to the Class II-B-5
Certificates until the Certificate Principal Balance thereof has been reduced to
zero;
third, to the Class II-B-4
Certificates until the Certificate Principal Balance thereof has been reduced to
zero;
fourth, to the Class II-B-3
Certificates until the Certificate Principal Balance thereof has been reduced to
zero;
fifth, to the Class II-B-2
Certificates until the Certificate Principal Balance thereof has been reduced to
zero;
sixth, to the Class II-B-1
Certificates until the Certificate Principal Balance thereof has been reduced to
zero;
seventh, to the Class II-A-3
Certificates until the Certificate Principal Balance thereof has been reduced to
zero; and
eighth, to the Class II-A-1
Certificates and the Class II-A-2 Certificates, pro
rata, until the Certificate Principal Balance thereof has been reduced to
zero;
and
ninth, to the Class II-A-1
Certificates until the Certificate Principal Balance thereof has been reduced to
zero.
Section
2. This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, and such
counterparts shall constitute but one and the same instrument.
2
IN WITNESS WHEREOF, the parties hereto
have caused their names to be signed hereto by their officers thereunto duly
authorized and their seal, duly attested, to be hereunto affixed, all as of the
day and year first above written.
| STRUCTURED
ASSET MORTGAGE INVESTMENTS II INC., as Depositor |
|
| By: /s/ Xxxx X. Xxxxxxxx | |
| Name: Xxxx X. Xxxxxxxx | |
| Title: Vice President | |
| CITIBANK, N.A., as Trustee | |
| By: /s/ Xxxx Xxxxxx | |
| Name: Xxxx Xxxxxx | |
| Title: Vice President | |
| XXXXX FARGO
BANK, NATIONAL ASSOCIATION, as Master Servicer and Securities Administrator |
|
| By: /s/ Xxxxxxxxx X. Xxxxxxxx | |
| Name: Xxxxxxxxx X. Xxxxxxxx | |
| Title: Vice President | |
| EMC MORTGAGE
CORPORATION, as Sponsor and Company |
|
| By: /s/ Xxxx Xxxxx-Xxxxx | |
| Name: Xxxx Xxxxx-Xxxxx | |
| Title: Senior Vice President |
3
STATE OF
NEW
YORK )
) ss.:
COUNTY OF
NEW
YORK )
On the
17th day of February, 2010, before me, a notary public in and for said State,
personally appeared Xxxx X. Xxxxxxxx, known to me to be a Vice President of
Structured Asset Mortgage Investments II Inc., the corporation that executed the
within instrument, and also known to me to be the person who executed it on
behalf of said corporation, and acknowledged to me that such corporation
executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
| /s/ Xxxxxx Xxx X Xxxxxx | |
| Notary Public |
[Notarial
Seal]
STATE OF
NEW
YORK )
) ss.:
COUNTY OF
NEW
YORK )
On the
17th day of February, 2010, before me, a notary public in and for said State,
personally appeared Xxxx Xxxxxx, known to me to be a Vice President of Citibank,
N.A., the entity that executed the within instrument, and also known to me to be
the person who executed it on behalf of said entity, and acknowledged to me that
such entity executed the within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal
the
day and
year in this certificate first above written.
| /s/ Xxxxxxx Xxxxxxxx | |
| Notary Public |
[Notarial
Seal]
STATE
OF MARYLAND
)
) ss.:
COUNTY
OF XXXX
ARUNDEL )
On the
17th day of February, 2010, before me, a notary public in and for said State,
personally appeared Xxxxxxxxx X. Xxxxxxxx, known to me to be a Vice President of
Xxxxx Fargo Bank, National Association, the entity that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said entity, and acknowledged to me that such entity executed the within
instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
| /s/ Xxxxxxx X. Day | |
| Notary Public |
[Notarial
Seal]
STATE
OF TEXAS
)
) ss.:
COUNTY
OF DALLAS
)
On the
17th day of February, 2010, before me, a notary public in and for said State,
personally appeared Xxxx Xxxxx-Xxxxx, known to me to be a Senior Vice President
of EMC Mortgage Corporation, the corporation that executed the within
instrument, and also known to me to be the person who executed it on behalf of
said corporation, and acknowledged to me that such corporation executed the
within instrument.
IN
WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
| /s/ Xxxxxx X. Xxxxxxx | |
| Notary Public |
[Notarial
Seal]
