AMENDMENT NUMBER ONE to the POOLING AND SERVICING AGREEMENT BEAR STEARNS ASSET BACKED SECURITIES I TRUST 2006-HE3, Dated as of March 1, 2006 among BEAR STEARNS ASSET BACKED SECURITIES I LLC, as Depositor EMC MORTGAGE CORPORATION, Sponsor and Company,...
AMENDMENT
NUMBER ONE
to
the
BEAR
XXXXXXX ASSET BACKED SECURITIES I TRUST 2006-HE3,
Dated
as
of March 1, 2006
among
BEAR
XXXXXXX ASSET BACKED SECURITIES I LLC,
as
Depositor
EMC
MORTGAGE CORPORATION,
Sponsor
and Company,
LASALLE
BANK NATIONAL ASSOCIATION,
Master
Servicer and Securities Administrator,
and
CITIBANK,
N.A.
TRUSTEE
This
AMENDMENT NUMBER ONE is made and entered into this 20th day of June, 2006,
by
and among BEAR XXXXXXX ASSET BACKED SECURITIES I LLC, a Delaware limited
liability company, as depositor (the “Depositor”), EMC MORTGAGE CORPORATION, a
Delaware corporation, as sponsor (in such capacity, a “Sponsor”) and as company
(in such capacity, the “Company”), LASALLE BANK NATIONAL ASSOCIATION, a national
banking association, as master servicer (in such capacity, the “Master
Servicer”) and as securities administrator (in such capacity, the “Securities
Administrator”) and CITIBANK, N.A., a national banking association, as trustee
(the “Trustee”), in connection with the Pooling and Servicing Agreement, dated
as of March 1, 2006, among the above mentioned parties (the “Agreement”), and
the issuance of Asset-Backed Certificates, Series 2006-HE3. This amendment
is
made pursuant to Section 12.01 of the Agreement.
1. Capitalized
terms used herein and not defined herein shall have the meanings assigned to
such terms in the Agreement.
2. The
first
two paragraphs of Section 11.01 of the Agreement shall be amended by deleting
it
in its entirety and replacing it with the following:
Subject
to Section 11.03, the obligations and responsibilities of the Depositor, the
Master Servicer, the Securities Administrator and the Trustee created hereby
with respect to the Trust Fund shall terminate upon the earlier of (a) the
exercise of the Majority Class CE Certificateholder (or its designee) or EMC,
as
applicable, of its right to repurchase all of the Mortgage Loans (and REO
Properties) remaining in the Trust Fund at a price (the “Mortgage Loan Purchase
Price”) equal to the sum of (i) 100% of the Stated Principal Balance of each
Mortgage Loan (other than in respect of REO Property), (ii) accrued interest
thereon at the applicable Mortgage Rate to, but not including, the first day
of
the month of such purchase, (iii) the appraised value of any REO Property in
the
Trust Fund (up to the Stated Principal Balance of the related Mortgage Loan),
such appraisal to be conducted by an appraiser mutually agreed upon by the
related servicer and the Trustee, and (iv) unreimbursed out-of pocket costs
of
the Company, the Servicers or the Master Servicer, including unreimbursed
servicing advances and the principal portion of any unreimbursed Advances,
made
on the Mortgage Loans prior to the exercise of such repurchase right, (v) any
unreimbursed costs and expenses of the Trustee and the Securities Administrator
payable pursuant to Section 10.05, (vi) any Swap Termination Payment (which
shall include any Net Swap Payment payable to the Trust Fund) payable to the
Swap Provider which remains unpaid or which is due to the exercise of such
option (the “Swap Optional Termination Payment”) and (b) the later of (i) the
maturity or other liquidation (or any Advance with respect thereto) of the
last
Mortgage Loan remaining in the Trust Fund and the disposition of all REO
Property and (ii) the distribution to Certificateholders of all amounts required
to be distributed to them pursuant to this Agreement, as applicable. In no
event
shall the trusts created hereby continue beyond the earlier of (i) the
expiration of 21 years from the death of the last survivor of the descendants
of
Xxxxxx X. Xxxxxxx, the late Ambassador of the United States to the Court of
St.
Xxxxx, living on the date hereof and (ii) the Latest Possible Maturity
Date.
The
right
to repurchase all Mortgage Loans and REO Properties by the Majority Class CE
Certificateholder pursuant to clause (a) in the preceding paragraph shall be
conditioned upon the Stated Principal Balance of all of the Mortgage Loans
in
the Trust Fund, at the time of any such repurchase, aggregating 10% or less
of
the aggregate Cut-off Date Principal Balance of all of the Mortgage Loans.
If
the Majority Class CE Certificateholder does not exercise this option, EMC
has
the right to repurchase all Mortgage Loans and REO Properties pursuant to clause
(a) in the preceding paragraph, conditioned upon the Stated Principal Balance
of
all of the Mortgage Loans in the Trust Fund, at the time of any such repurchase,
aggregating 5% or less of the aggregate Cut-off Date Principal Balance of all
of
the Mortgage Loans.
3. The
definition of Principal Funds in Section 1.01 of the Agreement shall be amended
by deleting it in its entirety and replacing it with the following:
Principal
Funds: With respect to any Distribution Date, (i) the sum, without duplication,
of (a) all scheduled principal collected during the related Due Period, (b)
all
Advances relating to principal made on or before the Distribution Account
Deposit Date, (c) Principal Prepayments exclusive of prepayment charges or
penalties collected during the related Prepayment Period, (d) the Stated
Principal Balance of each Mortgage Loan that was repurchased by EMC on its
own
behalf as a Seller and on behalf of Master Funding) pursuant to Sections 2.02
and 2.03 and by the Master Servicer pursuant to Section 3.05, (e) the aggregate
of all Substitution Adjustment Amounts for the related Determination Date in
connection with the substitution of Mortgage Loans pursuant to Section 2.03(c),
(f) all Liquidation Proceeds and Subsequent Recoveries collected during the
related Prepayment Period (to the extent such Liquidation Proceeds and
Subsequent Recoveries relate to principal), in each case to the extent remitted
by the Master Servicer to the Distribution Account pursuant to this Agreement
and (g) amounts in respect of principal paid by the Majority Class CE
Certificateholder or EMC, as applicable, pursuant to Section 11.01, minus (ii)
all amounts required to be reimbursed pursuant to Sections 5.02 and 5.10 or
as
otherwise set forth in this Agreement and (iii) any Net Swap Payments or Swap
Termination Payments (not due to a Swap Provider Trigger Event and to the extent
not paid by the Derivative Administrator from any upfront payment received
pursuant to any replacement interest rate swap agreement that may be entered
into by the Supplemental Interest Trust Trustee) owed to the Derivative
Administrator for payment to the Swap Provider for such Distribution Date and
any such payments remaining unpaid for any prior Distribution Dates to the
extent not paid from Interest Funds.
4. The
first
paragraph of Section 11.02 of the Agreement shall be amended by deleting it
in
its entirety and replacing it with the following:
If
on any
Determination Date, (i) the Master Servicer determines that there are no
Outstanding Mortgage Loans and no other funds or assets in the Trust Fund other
than the funds in the Master Servicer Collection Account, the Master Servicer
shall direct the Securities Administrator to send a final distribution notice
promptly to each Certificateholder or (ii) the Securities Administrator
determines that a Class of Certificates shall be retired after a final
distribution on such Class, the Securities Administrator shall notify the
Certificateholders within five (5) Business Days after such Determination Date
that the final distribution in retirement of such Class of Certificates is
scheduled to be made on the immediately following Distribution Date. Any final
distribution made pursuant to the immediately preceding sentence will be made
only upon presentation and surrender of the related Certificates at the
Corporate Trust Office of the Securities Administrator. If the Majority Class
CE
Certificateholder or EMC, as applicable, elects to terminate the Trust Fund
pursuant to Section 11.01, at least 20 days prior to the date notice is to
be
mailed to the Certificateholders, the Majority Class CE Certificateholder or
EMC, as applicable, shall notify the Depositor, the Securities Administrator
and
the Trustee of the date the Majority Class CE Certificateholder or EMC, as
applicable, intends to terminate the Trust Fund. The Master Servicer shall
remit
the Mortgage Loan Purchase Price to the Securities Administrator on the Business
Day prior to the Distribution Date for such Optional Termination by the Majority
Class CE Certificateholder or EMC, as applicable.
5. Section
11.03 of the Agreement shall be amended by deleting it in its entirety and
replacing it with the following:
(a) Upon
exercise by the Majority Class CE Certificateholder or EMC, as applicable,
of
its purchase option as provided in Section 11.01, the Trust Fund shall be
terminated in accordance with the following additional requirements, unless
the
Trustee and the Securities Administrator have been supplied with an Opinion
of
Counsel addressed to the Trustee and the Securities Administrator at the expense
of the Majority Class CE Certificateholder or EMC, as applicable, to the effect
that the failure of the Trust Fund to comply with the requirements of this
Section 11.03 will not (i) result in the imposition of taxes on “prohibited
transactions” of a REMIC, or (ii) cause a REMIC to fail to qualify as a REMIC at
any time that any Certificates are outstanding:
(1) The
Majority Class CE Certificateholder or EMC, as applicable, shall establish
a
90-day liquidation period and notify the Securities Administrator thereof,
and
the Securities Administrator shall in turn specify the first day of such period
in a statement attached to the tax return for each of REMIC I, REMIC II, REMIC
III, REMIC IV, REMIC V and REMIC VI pursuant to Treasury Regulation Section
1.860F-1. The Majority Class CE Certificateholder or EMC, as applicable, shall
satisfy all the requirements of a qualified liquidation under Section 860F
of
the Code and any regulations thereunder, as evidenced by an Opinion of Counsel
addressed to the Securities Administrator and the Trustee obtained at the
expense of the Majority Class CE Certificateholder or EMC, as
applicable;
(2) During
such 90-day liquidation period, and at or prior to the time of making the final
payment on the Certificates, the Securities Administrator on behalf of the
Trustee, shall sell all of the assets of REMIC I for cash; and
(3) At
the
time of the making of the final payment on the Certificates, the Securities
Administrator shall distribute or credit, or cause to be distributed or
credited, to the Holders of the Residual Certificates all cash on hand (other
than cash retained to meet claims), and REMIC I shall terminate at that
time.
(b) By
their
acceptance of the Certificates, the Holders thereof hereby authorize the
adoption of a 90-day liquidation period and the adoption of a plan of complete
liquidation for REMIC I, REMIC II, REMIC III, REMIC IV, REMIC V and REMIC VI,
which authorization shall be binding upon all successor
Certificateholders.
(c) The
Securities Administrator as agent for each REMIC hereby agrees to adopt and
sign
such a plan of complete liquidation meeting the requirements for a qualified
liquidation under Section 860F of the Code and any regulations thereunder upon
the written request of the Majority Class CE Certificateholder or EMC, as
applicable, and the receipt of the Opinion of Counsel referred to in Section
11.03(a)(1) and to take such other action in connection therewith as may be
reasonably requested by the Majority Class CE Certificateholder or EMC, as
applicable.
6. Except
as
amended above, the Agreement shall continue to be in full force and effect
in
accordance with its terms.
IN
WITNESS WHEREOF, the Depositor, the Company, the Sponsor, the Master Servicer,
the Securities Administrator and the Trustee have caused their names to be
signed hereto by their respective officers thereunto duly authorized as of
the
day and year first above written.
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BEAR
XXXXXXX ASSET BACKED
SECURITIES
I LLC,
as
Depositor
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| |
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| By: /s/ Xxxxx Xxxxxxxxxxx | ||
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Name: Xxxxx
Xxxxxxxxxxx
Title: Vice
President
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EMC
MORTGAGE CORPORATION,
as
Sponsor and Company
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| By: /s/ Xxx Xxxxxxxx | ||
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Name:
Xxx Xxxxxxxx
Title: Executive Vice
President
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LASALLE
BANK NATIONAL ASSOCIATION,
as
Master Servicer and Securities Administrator
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| By: /s/ Xxxxx X. Xxxx | ||
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Name:
Xxxxx X. Xxxx
Title: Assistant
Vice President
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CITIBANK,
N.A.,
as
Trustee
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| By: /s/ Xxxx Xxxxxx | ||
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Name: Xxxx
Xxxxxx
Title: Assistant
Vice President
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