Contract

AMENDMENT NO. 1 TO THE POOLING AND SERVICING AGREEMENT, SERIES 2002-1 THIS AMENDMENT NO. 1, dated as of February 20, 2004, to THE POOLING AND SERVICING AGREEMENT, dated as of March 1, 2002 ("Amendment No. 1") is entered into by and among Bear Stearns Asset Backed Securities, Inc., a Delaware corporation (the "Depositor"), American Business Credit, Inc., a Pennsylvania corporation ("ABC"), and JPMorgan Chase Bank, a New York banking corporation, as trustee and collateral agent (the "Trustee"). WHEREAS, pursuant to the Pooling and Servicing Agreement, dated as of March 1, 2002 (the "Servicing Agreement"), by and among the Depositor, ABC, as Servicer and the Trustee, ABC agreed to service and administer the Mortgage Loans in accordance with accepted servicing practices as provided therein; WHEREAS, Ambac Assurance Corporation (the "Certificate Insurer") has issued a Certificate Insurance Policy (as defined in the Servicing Agreement) for the benefit of the Holders of the Class A Certificates and, pursuant to Section 7.04 of the Servicing Agreement, is entitled to exercise all rights granted to the Majority Certificateholders and is entitled to remove the Servicer upon the occurrence of an Event of Default set forth in Section 7.01(a) of the Servicing Agreement; WHEREAS, an Event of Default under Section 7.01(a)(x) of the Servicing Agreement has occurred and is continuing and the Certificate Insurer is entitled to remove ABC as Servicer in accordance with such Section; WHEREAS, in consideration for entering into this Amendment No. 1, the Certificate Insurer has agreed to waive such Event of Default and not exercise its right to remove ABC as Servicer at this time; WHEREAS, ABC, the Depositor, the Trustee and the Certificate Insurer have agreed that they mutually desire to provide for term servicing as provided for herein; WHEREAS, the Depositor, ABC and the Trustee desire to amend certain provisions of the Servicing Agreement as set forth in this Amendment No. 1 in accordance with Section 11.03(b) of the Servicing Agreement and the Certificate Insurer on behalf of itself and as the party entitled to exercise the rights of the Majority Certificateholders hereby consents to such amendments; NOW, THEREFORE, in consideration of the mutual agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound hereby, agree as follows: 1. Defined Terms. Any capitalized term used herein and not defined herein shall have the meanings assigned to such term in the Servicing Agreement. 2. Amendment to Section 1.01. The following definitions shall be added to Section 1.01 of the Servicing Agreement: Servicing Extension Notice: As defined in Section 7.08(b). Servicing Period: As defined in Section 7.08(b). 3. Amendments to Article VII. (A) Section 7.02 of the Servicing Agreement is deleted in its entirety and replaced with the following: "Section 7.02 Trustee to Act; Appointment of Successor. (a) On and after the time the Servicer receives a notice of termination pursuant to Section 7.01, the Servicer fails to receive a Servicing Extension Notice in accordance with Section 7.08 or, the Trustee receives the resignation of the Servicer evidenced by an Opinion of Counsel pursuant to Section 5.21, the Trustee shall promptly notify the Rating Agencies and the Certificate Insurer and, except as otherwise provided in Section 7.01, the Trustee or such other Person as may be specified by the Certificate Insurer shall be the successor in all respects to the Servicer in its capacity as servicer under this Agreement and the transactions set forth or provided for herein and shall be subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof arising on or after the date of succession; provided, however, that the Trustee shall not be liable for any actions or omissions or the representations and warranties of any prior Servicer, including, without limitation, the obligations of the Servicer set forth in Sections 2.06 and 3.03. The Trustee, as successor servicer, shall be obligated to pay Compensating Interest pursuant to Section 6.09 in any event and to make advances pursuant to Section 5.18 unless, and only to the extent the Trustee determines reasonably and in good faith that such advances would not be recoverable pursuant to Section 5.04, such determination to be evidenced by a certification of a Responsible Officer of the Trustee delivered to the Certificate Insurer. Notwithstanding its prior termination, the Servicer shall continue servicing until such time as the succession of a successor servicer is complete. (b) Notwithstanding the above, the Trustee may, if it shall be unwilling to so act, or shall, if it is unable to so act or if the Certificate Insurer so requests in writing to the Trustee, appoint, pursuant to such direction of the Certificate Insurer, or if no such direction is provided to the Trustee, pursuant to the provisions set forth in paragraph (c) below, or petition a court of competent jurisdiction to appoint, any established mortgage loan servicing institution acceptable to the Certificate Insurer that has a net worth of not less than $15,000,000 as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. (c) In the event the Trustee is the successor servicer, it shall be entitled to the same Servicing Compensation (including the Servicing Fee as adjusted pursuant to the definition thereof) and other funds pursuant to Section 5.08 hereof as the Servicer if the Servicer had continued to act as servicer hereunder. In the event the Trustee is unable or unwilling to act as successor servicer, and a successor servicer is not appointed by the Certificate Insurer, the Trustee shall solicit, by public announcement, bids from housing and home finance institutions, banks and mortgage servicing institutions meeting the qualifications set forth above and acceptable to the Certificate Insurer. Such public announcement shall specify that the successor servicer shall be entitled to the full amount of the aggregate Servicing Fees hereunder as servicing compensation, together with the other Servicing Compensation. After any such public announcement, the Trustee shall negotiate and effect the sale, transfer and assignment of the servicing rights and responsibilities hereunder to the qualified party submitting the highest qualifying bid. The Trustee shall deduct from any sum received by the Trustee from the successor to the Servicer in respect of such sale, transfer and assignment all costs and expenses of any public announcement and of any sale, transfer and assignment of the servicing rights and responsibilities hereunder and the amount of any unreimbursed Servicing Advances and Periodic Advances owed to the Trustee. After such deductions, the remainder of the proceeds of such sale shall be paid by the Trustee to the Servicer at the time of such sale, transfer and assignment to the Servicer's successor. (d) The Trustee and such successor servicer shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession. The Servicer agrees to deliver promptly to such successor, electronically or physically, as the case may be, all files, data and funds related to the Mortgage Loans. The Servicer agrees to cooperate with the Trustee and any successor servicer in effecting the termination of the Servicer's servicing responsibilities and rights hereunder and shall promptly provide the Trustee or such successor servicer, as applicable, at the Servicer's cost and expense, all documents and records reasonably requested by it to enable it to assume the Servicer's functions hereunder and shall promptly also transfer to the Trustee or such successor servicer, as applicable, all amounts that then have been or should have been deposited in the Collection Account by the Servicer or that are thereafter received with respect to the Mortgage Loans. Any collections received by the Servicer after such removal or resignation shall be endorsed by it to the Trustee and remitted directly to the Trustee or, at the direction of the Trustee, to the successor servicer. Neither the Trustee nor any successor servicer shall be held liable by reason of any failure to make, or any delay in making, any distribution hereunder or any portion thereof caused by (i) the failure of the Servicer to deliver, or any delay in delivering, cash, documents, files, data or records to it, or (ii) restrictions imposed by any regulatory authority having jurisdiction over the Servicer hereunder. The Trustee shall not resign as servicer until a successor servicer reasonably acceptable to the Certificate Insurer has been appointed or until a successor servicer has been appointed in accordance with paragraph (c) above. The Certificate Insurer shall have the right to remove the Trustee (or any successor Servicer) as successor Servicer under this Section 7.02 without cause, and the Trustee shall appoint such other successor Servicer as directed in writing by the Certificate Insurer. (e) Pending appointment of a successor to the Servicer hereunder, the Trustee shall act in such capacity as hereinabove provided. In connection with such appointment and assumption, the Trustee may make such arrangements for the compensation of such successor out of payments on Mortgage Loans as the Certificate Insurer and such successor shall agree; provided, however, that unless otherwise agreed by the Certificate Insurer, no such compensation shall be in excess of that permitted the Servicer pursuant to Section 5.08, together with other Servicing Compensation. The Servicer, the Trustee and such successor shall take such action, consistent with this Agreement, as shall be necessary to effectuate any such succession." (B) The following Section 7.08 shall be added at the end of Article VII of the Servicing Agreement: "Section 7.08. Term Servicing. (a) Notwithstanding anything to the contrary herein, at the direction of the Certificate Insurer, the Trustee designates ABC as the Servicer of the Mortgage Loans under this Agreement for a term of twenty-five days, commencing on February 20, 2004 and ending on March 15, 2004. The Trustee, at the direction of the Certificate Insurer, hereby retains ABC to perform all duties and obligations of the Servicer with respect to the Mortgage Loans under this Agreement, in accordance with the terms hereof, all applicable laws and regulations, and the terms of all related documents pursuant to which ABC has acted prior to the date hereof. ABC hereby assumes the due and punctual performance and observance of each covenant and condition to be performed or observed by the Servicer with respect to the Mortgage Loans under this Agreement. (b) The Certificate Insurer may, in its sole discretion, send a written notice (each such notice, a "Servicer Extension Notice"), to ABC and the Trustee, extending any such term for one or more terms of one calendar month, or such longer terms as may be specified therein by the Certificate Insurer (each, a "Servicing Period"). Any Servicer Extension Notice shall be delivered to such parties no later than ten (10) Business Days prior to the expiration of the existing Servicing Period; provided, however, that any such Servicer Extension Notice that extends the terms under this Agreement is revocable by the Certificate Insurer, in its sole discretion, upon the occurrence of an Event of Default. The Servicer hereby agrees that, as of the date hereof and upon its receipt of any such Servicer Extension Notice prior to the expiration of the existing Servicing Period, the Servicer shall be bound for the duration of the initial term and each successive term covered by such Servicer Extension Notice to act as the Servicer of the Mortgage Loans hereunder, unless the Servicer is otherwise terminated in accordance with Section 7.01 hereof. If a Servicer Extension Notice is delivered after the expiration of the existing Servicing Period, the Trustee, the Certificate Insurer and the Servicer may agree that the Servicer shall be bound for the Servicing Period covered by such Servicer Extension Notice to act as the Servicer of the Mortgage Loans hereunder, unless the Servicer is otherwise terminated in accordance with Section 7.01 hereof. Unless a Servicer Extension Notice is sent, all of the Servicer's rights and obligations under this Agreement and with respect to the Mortgage Loans shall automatically expire without any further action on the part of any party. (c) In the event the Trustee has not received a Servicer Extension Notice from the Certificate Insurer on or before the date that is ten (10) Business Days prior to the expiration of the existing Servicing Period, then the Trustee may notify the Certificate Insurer to that effect and inquire as to whether the Certificate Insurer will send or direct the Trustee to send a Servicer Extension Notice. (d) Subject to the cooperation of the Servicer and the delivery of the files, documents and data as provided in Section 7.02(d) herein, on and after the time the Servicer receives a notice of termination pursuant to Section 7.01 or fails to receive a Servicer Extension Notice pursuant to Section 7.08(b) and transfer of servicing has been completed, the Trustee or such other successor appointed by the Certificate Insurer shall be the successor in all respects to the Servicer in its capacity as Servicer under this Agreement and the transactions set forth or liabilities relating thereto and arising thereafter placed on the Servicer (except for any representations or warranties of the Servicer) under this Agreement by the terms and provisions hereof. (e) Notwithstanding anything to the contrary herein, this Section 7.08 shall only apply to ABC as Servicer and not to any successor servicer." 4. Each party represents as to itself that it has duly and validly executed and delivered this Amendment No. 1 and that, assuming this Amendment No. 1 has been duly and validly executed and delivered by the other party hereto, this Amendment No. 1 constitutes the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, moratorium or other similar laws relating to creditors rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). 5. Except as modified herein, each of the parties hereto acknowledges and agrees that it continues to be bound by each of the terms and provisions of the Servicing Agreement, which terms and provisions, as amended hereby, shall continue in full force and effect. 6. If one or more of the provisions, agreements or terms of this Amendment No. 1 shall be for any reason whatsoever held invalid, then such provisions, agreements or terms shall be deemed severable from the remaining provisions, agreements or terms of this Amendment No. 1 and shall in no way affect the validity or enforceability of the other provisions of this Amendment No. 1, the Servicing Agreement, or the rights of the parties hereto or thereto. 7. This Amendment No. 1 may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other parties, it being understood that both parties need not sign the same counterpart. 8. This Amendment No. 1 shall be governed by and construed in accordance with the laws of the State of New York. [The remainder of this page has been intentionally left blank.] IN WITNESS WHEREOF, each of the parties has caused this Amendment No. 1 to be duly executed on its behalf as of the day and year first above written. BEAR STEARNS ASSET BACKED SECURITIES, INC., as Depositor By: /s/ Matthew Perkins ----------------------------------- Name: Matthew Perkins Title: Vice President AMERICAN BUSINESS CREDIT, INC., as Servicer By: /s/ Jeffrey M. Ruben ----------------------------------- Name: Jeffrey M. Ruben Title: Executive Vice President JPMORGAN CHASE BANK, not in its individual capacity but solely as Indenture Trustee and Collateral Agent By: /s/ Rich Gilfoil ----------------------------------- Name: Rich Gilfoil Title: Vice President AMBAC ASSURANCE CORPORATION, as Certificate Insurer and as the party entitled to exercise the voting rights of the Majority Certificateholders in accordance with Section 7.04 of the Servicing Agreement By: /s/ Thomas Sangiamo ----------------------------------- Name: Thomas Sangiamo Title: Vice President The Certificateholders named below hereby consent to this Amendment No. 1 to the Pooling and Servicing Agreement. ABFS WAREHOUSE TRUST 2003-1, as Class R Certificateholder By: WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Owner Trustee By: /s/ Linda C. Mack ----------------------------------- Name: Linda C. Mack Title: Financial Services Officer FORM OF SERVICER EXTENSION NOTICE ______, 20__ JPMorgan Chase Bank 4 New York Plaza, 6th Floor New York, New York 10004 Attn: Institutional Trust Services - ABFS 2002-1 American Business Credit, Inc. c/o American Business Financial Services, Inc. The Wanamaker Building 100 Penn Square East, 8th Floor Philadelphia, Pennsylvania 19107 Attn: General Counsel Re: ABFS MORTGAGE LOAN TRUST 2002-1 To Whom It May Concern: Reference is made to the Pooling and Servicing Agreement, dated as of March 1, 2002, as amended (the "Agreement"), by and among Bear Stearns Asset Backed Securities, Inc., as Depositor, American Business Credit, Inc., as Servicer and JPMorgan Chase Bank, as Trustee and Collateral Agent. Pursuant to Section 7.08(b) of the Agreement, Ambac Assurance Corporation hereby notifies you of the extension of the Servicing Period for ___ term(s). Please feel free to contact Tom Sangiamo or myself with any questions or comments you may have concerning this matter. I can be reached at (212) 208-3376, and Tom Sangiamo at (212) 208 3525. Respectfully, Donna Troia First Vice President Consumer Asset Backed Securities Specialized Finance Portfolio Risk Management