Contract
This
AMENDMENT No. 1 (the “Amendment”) is made this 16th day of
November,
2007, by and among EMC Mortgage Corporation (the “Assignor”), U.S. Bank National
Association, not individually but solely as trustee for the holders of the
Bear
Xxxxxxx Asset Backed Securities I Trust 2007-AC1, Asset-Backed Certificates,
Series 2007-AC1 (the “Assignee”) and GreenPoint Mortgage Funding, Inc.
(“GreenPoint”) to the Assignment, Assumption and Recognition Agreement dated as
of January 30, 2007 (th (the “AAR Agreement”), by and among the Assignor, the
Assignee and GreenPoint.
WHEREAS,
the Assignor, the Assignee and GreenPoint 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 January 30, 2007 the AAR
Agreement is hereby amended as follows:
(a) 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 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, in the Company's reasonable and prudent determination, such
waiver, modification, postponement or indulgence: (A) 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
defined in the related 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 related 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
a certification addressed to the Purchaser, based on the advice of counsel
or
certified public accountants 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 Purchaser, 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 X 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 GreenPoint 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 GreenPoint.
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.
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,
as
Assignor
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By:
|
/s/ Xxxxxxxx Xxxxxx | |
| Name: | Xxxxxxxx Xxxxxx | ||
| Title: | Senior Vice President | ||
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U.S.
BANK NATIONAL ASSOCIATION, not individually but solely as Trustee
for
the
Bear Xxxxxxx Asset Backed Securities I Trust 2007-AC1, Asset-Backed
Certificates, Series 2007-AC1,
as
Assignee
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By:
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/s/ Xxxxxxxxx Xxxxxx | |
| Name: | Xxxxxxxxx Xxxxxx | ||
| Title: | Assistant Vice President | ||
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GREENPOINT
MORTGAGE FUNDING, INC.
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By:
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/s/ Xxxxx Xxxxx | |
| Name: | Xxxxx Xxxxx | ||
| Title: | Vice President | ||
|
Acknowledged
and Agreed:
EMC
MORTGAGE CORPORATION,
as
Master Servicer
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By:
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/s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | ||
| Title: | Assistant Secretary | ||
