Contract
This
AMENDMENT No. 1 (the “Amendment”) is made this 14th day of
November,
2007, by and among EMC Mortgage Corporation (the “Assignor”), Xxxxx Fargo Bank,
National Association, as trustee for the holders of Bear Xxxxxxx Asset Backed
Securities I Trust 2007-AC3, Asset-Backed Certificates, Series 2007-AC3 (the
“Assignee”) and Fifth Third Mortgage Company (“Fifth Third”) to the Assignment,
Assumption and Recognition Agreement dated as of March 30, 2007 (the “AAR
Agreement”), by and among the Assignor, the Assignee and Fifth
Third.
WHEREAS,
the Assignor, the Assignee and Fifth Third desire to amend the AAR Agreement
as
set forth herein.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties hereto hereby agrees as
follows:
SECTION
1. Defined
Terms. Unless otherwise amended by the terms of this
Amendment, terms used in this Amendment shall have the meanings assigned in
the
AAR Agreement.
SECTION
2. Amendment. Effective
as of March 30, 2007 the AAR Agreement is hereby amended as
follows:
(a) Section
2 of the AAR Agreement is hereby amended by deleting subsection (g) in its
entirety and replacing it with the following:
(g)
Section 4.01 of the Purchase Agreement is hereby amended by changing the first
sentence of the second paragraph to the following:
Consistent
with and in addition to the terms set forth in this Agreement, if a Mortgage
Loan is in default or such default is reasonably foreseeable, the Company may
waive, modify or vary any term of any Mortgage Loan or consent to the
postponement of strict compliance with any such term or in any manner grant
indulgence to any Mortgagor, including without limitation, to (1) capitalize
any
amounts owing on the Mortgage Loan by adding such amount to the outstanding
principal balance of the Mortgage Loan, (2) defer such amounts to a later date
or the final payment date of such Mortgage Loan, (3) extend the maturity of
any
such Mortgage Loan, (4) amend the related Mortgage Note to reduce the related
Mortgage Interest Rate with respect to any Mortgage Loan, (5) convert the
Mortgage Interest Rate on any Mortgage Loan from a fixed rate to an adjustable
rate or vice versa, (6) with respect to a mortgage loan with an initial fixed
rate period followed by an adjustable rate period, extend the fixed period
and
reduce the adjustable rate period, and/or (7) forgive the amount of any
interest, principal or servicing advances owed by the related Mortgagor;
provided that, such waiver, modification, postponement or indulgence: (A) in
the
Company's reasonable and prudent determination, is not materially adverse to
the
interests of the Purchaser on a present value basis using reasonable assumptions
(including taking into account any estimated Realized Loss (as such term is
defined in the Pooling and Servicing Agreement) that might result absent such
action); and (B) does not amend the related Mortgage Note to extend the maturity
thereof later than the date of the Latest Possible Maturity Date (as such term
is defined in the Pooling and Servicing Agreement); provided, further, with
respect to any Mortgage Loan that is not in default or if default is not
reasonably foreseeable, unless the Company has provided to the Purchaser an
Opinion of Counsel addressed to the Purchaser, from counsel that have a national
reputation with respect to taxation of REMICs, that a modification of such
Mortgage Loan will not result in the imposition of taxes on or disqualify from
REMIC status any of the REMICs and has obtained the prior written consent of
the
Master Servicer, the Company shall not permit any modification with respect
to
any Mortgage Loan. Notwithstanding the foregoing, for any waiver,
modification, postponement or indulgence (not including any partial releases,
assumptions of mortgages or modifications of any Mortgage Loan that is done
in
connection with compliance with the Relief Act) which the Company reasonably
anticipates may result in a Realized Loss of 20% or more of the outstanding
principal balance of a Mortgage Loan, the Company shall present such proposed
waiver, modification, postponement or indulgence, together with any supporting
documentation, to the Master Servicer for consideration and
approval. The Company shall submit all waivers, modifications or
variances of the terms of any Mortgage Loan with respect to partial releases,
assumptions of mortgages or for modifications done in furtherance of compliance
with the Relief Act, together with any supporting documentation, to the Master
Servicer for consideration and approval.
(b) The
Purchase Agreement is hereby amended as of the date hereof by deleting in its
entirety Exhibit W to the Purchase Agreement.
SECTION
3. Effect of
Amendment. Upon execution of this Amendment, the AAR
Agreement shall be, and be deemed to be, modified and amended as of the date
of
the AAR Agreement in accordance herewith and the respective rights, limitations,
obligations, duties, liabilities and immunities of the Assignor, the Assignee
and Fifth Third shall hereafter be determined, exercised and enforced subject
in
all respects to such modifications and amendments, and all the terms and
conditions of this Amendment shall be deemed to be part of the terms and
conditions of the AAR Agreement for any and all purposes. Except as modified
and
expressly amended by this Amendment, the AAR Agreement is in all respects
ratified and confirmed, and all the terms, provisions and conditions thereof
shall be and remain in full force and effect.
SECTION
4. Binding
Effect. The provisions of this Amendment shall be binding
upon and inure to the benefit of the respective successors and assigns of the
parties hereto, and all such provisions shall inure to the benefit of the
Assignor, the Assignee and Fifth Third.
SECTION
5. Severability of
Provisions. If any one or more of the provisions or terms
of this Amendment shall be for any reason whatsoever held invalid, then such
provisions or terms shall be deemed severable from the remaining provisions
or
terms of this Amendment and shall in no way affect the validity or
enforceability of the other provisions or terms of this Amendment.
SECTION
6. Section
Headings. The section headings herein are for convenience
of reference only, and shall not limit or otherwise affect the meaning
hereof.
SECTION
7. Execution in
Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be executed by
the
parties hereto and be deemed an original and all of which shall constitute
together by one and the same agreement.
SECTION
8. Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW WHICH SHALL GOVERN.
SECTION
9. Assignee
Capacity. Notwithstanding any term hereof to the contrary,
it is expressly understood and agreed to by the parties hereto that the
execution and delivery of this Amendment is solely in its capacity as trustee
for Bear Xxxxxxx Asset Backed Securities I Trust, Asset-Backed Certificates,
Series 2007-AC3 and not individually, and any recourse against the Assignee
in
respect of any obligations it may have under or pursuant to the terms of this
Amendment or the AAR Agreement shall be limited solely to the assets it may
hold
as trustee of Bear Xxxxxxx Asset Backed Securities I Trust, Asset-Backed
Certificates, Series 2007-AC3.
IN
WITNESS WHEREOF, the parties have caused this Amendment to the AAR Agreement
to
be executed by their respective officers thereunto duly authorized as of the
day
and year first above written.
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EMC
MORTGAGE CORPORATION
Assignor
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By:
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/s/ Xxxxxx
Xxxxx
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Name:
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Xxxxxx
Xxxxx
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Title:
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Senior
Vice President
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XXXXX
FARGO BANK, NATIONAL ASSOCIATION, not individually but solely as
Trustee for the holders of Bear Xxxxxxx Asset Backed Securities I
Trust
2007-AC3, Asset-Backed Certificates, Series 2007-AC3
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By:
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/s/
Xxxxxxxx X. Xxxxxx
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Name:
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Xxxxxxxx
X. Xxxxxx
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Title:
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Assistant
Vice President
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FIFTH
THIRD MORTGAGE COMPANY
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By:
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/s/
Xxxxxx Xxxxxx
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Name:
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Xxxxxx
Xxxxxx
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Title:
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Assistant
Vice President
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Acknowledged
and Agreed:
EMC
MORTGAGE CORPORATION
Master
Servicer
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By:
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/s/ Xxxxxxxx
Xxxxx
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Name:
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Xxxxxxxx
Xxxxx
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Title:
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Vice
President
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