Contract
This
AMENDMENT No. 1 (the “Amendment”) is made this 19th day of
October,
2007, by and among EMC Mortgage Corporation (the “Assignor”), 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 (the “Assignee”) and Mid America Bank, fsb (“Mid
America”) to the Assignment, Assumption and Recognition Agreement dated as of
March 30, 2007 (the “AAR Agreement”), by and among the Assignor, the Assignee
and Mid America.
WHEREAS,
the Assignor, the Assignee and Mid America 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 8 of the AAR Agreement is hereby amended by
deleting subsection (c) in its entirety and replacing it with the
following:
(c)
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 this Agreement and the related
Term
Sheet, 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 Loan 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 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 Mid America 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 Mid America.
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 2007-AC3, 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
2007-AC3, 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:
/s/ Xxxxxxxx
Xxxxxx
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Name:
Xxxxxxxx
Xxxxxx
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Title:
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:
/s/ Xxxxxxxx X.
Xxxxxx
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Name: Xxxxxxxx
X.
Xxxxxx
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Title:
Assistant Vice
President
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MID
AMERICA BANK, FSB
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By:
/s/ Xxxxxxx
Xxxxx
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Name:
Xxxxxxx
Xxxxx
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Title: First
Vice President, Secondary Marketing
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Acknowledged
and Agreed:
EMC
MORTGAGE CORPORATION
Master
Servicer
By:
/s/ Xxxx
Xxxxxxxx
Name:
Xxxx
Xxxxxxxx
Title: Assistant
Secretary
