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AMENDMENT NO. 1
Dated as of June 25, 2002
to
POOLING AND SERVICING AGREEMENT
Dated as of October 1, 2001
among
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.,
Depositor
EMC MORTGAGE CORPORATION,
Seller and Master Servicer
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee and Securities Administrator
______________________________________
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-AC2
ASSET-BACKED CERTIFICATES, SERIES 2001-AC2
______________________________________
THIS AMENDMENT NO. 1, dated as of June 25, 2002 (the "Amendment"), to
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of October 1, 2001, among BEAR XXXXXXX ASSET BACKED SECURITIES, INC., a
Delaware corporation, as depositor (the "Depositor"), EMC MORTGAGE CORPORATION,
a Delaware corporation, as seller (the "Seller") and master servicer (the
"Master Servicer") and XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION, a
national banking association, as trustee (the "Trustee") and securities
administrator (the "Securities Administrator").
W I T N E S S E T H
WHEREAS, the Depositor, the Seller, the Master Servicer, the Trustee
and the Securities Administrator entered into the Pooling and Servicing
Agreement;
WHEREAS, the Depositor, the Seller, the Master Servicer, the Trustee
and the Securities Administrator desire to amend certain provisions of the
Pooling and Servicing Agreement to evidence that the servicing rights with
respect to certain of the Mortgage Loans and the Class P Certificate has been
sold to CitiMortgage, Inc.
WHEREAS, Section 11.01 of the Pooling and Servicing Agreement provides
that the Pooling and Servicing Agreement may be amended by the Depositor, the
Seller, the Master Servicer, the Trustee and the Securities Administrator
without the consent of any of the Certificateholders to correct or supplement
any provisions contained in the Pooling and Servicing Agreement;
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NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms.
For purposes of this Amendment, unless the context clearly requires
otherwise, all capitalized terms which are used but not otherwise defined herein
shall have the respective meanings assigned to such terms in the Pooling and
Servicing Agreement.
SECTION 2. The Amendments.
(a) Section 1.01 of the Pooling and Servicing Agreement is hereby
amended as follows:
(i) The following definitions are hereby added to Section 1.01
of the Pooling and Servicing Agreement:
"CITIMORTGAGE SUBSERVICING AGREEMENT: Shall mean the
Subservicing Agreement, dated as of June 25, 2002, by and
between the Master Servicer and CitiMortgage, Inc..
INDEMNIFIED PERSONS: The Trustee, the Master Servicer, and the
Securities Administrator and their officers, directors, agents
and employees and, with respect to the Trustee, any separate
co-trustee and its officers, directors, agents and employees.
LENDER PAID MORTGAGE INSURANCE POLICY OR LPMI POLICY: A policy
of mortgage guaranty insurance issued by an insurer meeting
the requirements of Xxxxxx Mae and Xxxxxxx Mac in which the
servicer of the related Mortgage Loan is responsible for the
payment of the LPMI Fee thereunder from amounts collected on
the related Mortgage Loan.
LPMI Fee: Shall mean the fee payable to the insurer for each
Mortgage Loan subject to a LPMI Policy as set forth in such
LPMI Policy.
MERS: Mortgage Electronic Registration Systems, Inc., a
corporation organized and existing under the laws of the
State of Delaware, or any successor thereto.
MERS(R) SYSTEM: The system of recording transfers of Mortgages
electronically maintained by MERS.
MIN: The Mortgage Identification Number for Mortgage Loans
registered with MERS on the MERS(R)System.
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MOM LOAN: With respect to any Mortgage Loan, MERS acting as
the mortgagee of such Mortgage Loan, solely as nominee for the
originator of such Mortgage Loan and its successors and
assigns, at the origination thereof.
(ii) The definition of "Insurance Policy" is hereby amended by
adding the words "or LPMI Policy" after the word "policy" in the second line
thereof.
(iii) Clause (i)(a) of the definition of "Interest Funds" is
hereby amended by adding the words "and the LPMI Fee, if any" before the comma
at the end thereof.
(iv) The definition of "Net Mortgage Rate" is hereby deleted
in its entirety and replaced with the following:
"NET MORTGAGE RATE: As to each Mortgage Loan, and at any time,
the per annum rate equal to the Mortgage Rate less the sum of
(i) the related Servicing Fee Rate and (ii) the rate at which
the LPMI Fee is calculated."
(v) The definition of "Prepayment Interest Shortfall" is
hereby amended by adding the following at the end thereof:
"less the sum of (a) any Prepayment Charges, (b) the related
Servicing Fee and (c) the LPMI Fee."
(vi) Clause (ii) of the definition of "Servicing Advances" is
hereby amended by adding the following at the end thereof:
"and including any expenses incurred in relation to any such
proceedings that result from the Mortgage Loan being
registered in the MERS(R) System"
(vii) Clause (iv) of the definition of "Servicing Advances" is
hereby amended by adding the words "and Section 3.11" after the words "Section
3.09" in the last line thereof.
(viii) The definition of "Subservicing Agreement" is hereby
replaced in its entirety with the following:
"SUBSERVICING AGREEMENT: Any agreement (including, without
limitation, the National City Subservicing Agreement and the
CitiMortgage Subservicing Agreement) entered into between the
Master Servicer and a subservicer with respect to the
subservicing of any Mortgage Loan hereunder by such
subservicer."
(b) Clause (ii) of the fourth paragraph of Section 2.01 of the Pooling
and Servicing Agreement is hereby deleted in its entirety and replaced with the
following:
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"(ii) the original Mortgage and, if the related Mortgage Loan
is a MOM Loan, noting the presence of the MIN and language
indicating that such Mortgage Loan is a MOM Loan, which shall
have been recorded (or if the original is not available, a
copy), with evidence of such recording indicated thereon (or
if clause (x) in the proviso below applies, shall be in
recordable form),"
(c) Clause (iii) of the fourth paragraph of Section 2.01 of the Pooling
and Servicing Agreement is hereby amended by adding "unless the Mortgage Loan is
a MOM Loan," at the beginning thereof.
(d) The proviso contained in the fourth paragraph of Section 2.01 of
the Pooling and Servicing Agreement is hereby deleted in its entirety and
replaced with the following:
; provided that the Seller need not cause to be recorded any
assignment if MERS is identified on the Mortgage or on a
properly recorded assignment of the Mortgage as the mortgagee
of record solely as nominee for Seller and its successor and
assigns."
(e) Section 2.01 of the Pooling and Servicing Agreement is hereby
amended by adding the following paragraph to the end thereof:
"In connection with the assignment of any Mortgage Loan
registered on the MERS(R) System, the Seller further agrees
that it will cause, at the Seller's own expense, on or before
the Transfer Date (as defined in the CitiMortgage Subservicing
Agreement), the MERS(R) System to indicate that such Mortgage
Loans have been assigned by the Seller to the Depositor and by
the Depositor to the Trustee in accordance with this Agreement
for the benefit of the Certificateholders by including (or
deleting, in the case of Mortgage Loans which are repurchased
in accordance with this Agreement) in such computer files (a)
the code in the field which identifies the specific Trustee
and (b) the code in the field "Pool Field" which identifies
the series of the Certificates issued in connection with such
Mortgage Loans. The Seller further agrees that it will not,
and will not permit any Subservicer or the Master Servicer to,
and the Master Servicer agrees that it will not, alter the
codes referenced in this paragraph with respect to any
Mortgage Loan during the term of this Agreement unless and
until such Mortgage Loan is repurchased in accordance with the
terms of this Agreement. With respect to each Mortgage Loan
serviced by CitiMortgage pursuant to the CitiMortgage
Subservicing Agreement, the Seller shall notify MERS that
CitiMortgage is to be added as servicer of record with respect
thereto."
(f) Clause (b) of Section 3.03 of the Pooling and Servicing
Agreement is hereby deleted in its entirety and replaced with the following:
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"(b) For purposes of this Agreement, the Master Servicer shall
be deemed to have received any collections, recoveries or
payments with respect to the Mortgage Loans (other than the
National City Loans and any Mortgage Loans being serviced by
CitiMortgage Inc. pursuant to the CitiMortgage Subservicing
Agreement) that are received by a subservicer regardless of
whether such payments are remitted by the subservicer to the
Master Servicer."
(g) Clause (b) of Section 4.01 of the Pooling and Servicing
Agreement is hereby amended by adding the words "and CitiMortgage, Inc." in the
parenthetical on the eighth line thereof.
(h) Clause (b)(ii) of Section 4.01 of the Pooling and Servicing
Agreement is hereby deleted in its entirety and replaced with the following:
"(ii) all payments on account of interest on the Mortgage
Loans, adjusted to the Net Mortgage Rate;"
(i) The proviso contained in the second to last paragraph of Section
4.02 of the Pooling and Servicing Agreement is hereby amended by adding "or on
any Mortgage Loan being serviced by CitiMortgage, Inc. pursuant to the
CitiMortgage Subservicing Agreement".
(j) Clause (d) of Section 4.04 of the Pooling and Servicing
Agreement is hereby deleted in its entirety and replaced with the following:
"(d) The Trustee shall deposit in the Distribution Account for
inclusion in the Interest Funds and Principal Funds to be
distributed to the Certificateholders in the related
Distribution Date, all payments, collections and other
recoveries received by it from National City with respect to
the National City Loans and from CitiMortgage, Inc. with
respect to any Mortgage Loans serviced by it pursuant to the
CitiMortgage Subservicing Agreement during the related Due
Period or Prepayment Period, as applicable, (which shall
include all Principal Prepayments and Insurance Proceeds
received after the related Prepayment Period by the Master
Servicer or the Trustee, as applicable, which the Master
Servicer deems to have been received during the related
Prepayment Period)."
(k) The first paragraph of Section 5.02 of the Pooling and Servicing
Agreement is hereby amended by adding the words "or any Mortgage Loan being
serviced by CitiMortgage, Inc. pursuant to the CitiMortgage Subservicing
Agreement" in the parenthetical contained in the second line thereof.
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SECTION 3. Effect of Amendment.
Upon execution of this Amendment, the Pooling and Servicing Agreement
shall be, and be deemed to be, modified and amended in accordance herewith and
the respective rights, limitations, obligations, duties, liabilities and
immunities of the Seller, the Master Servicer, the Depositor, the Trustee and
the Securities Administrator 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 Pooling and Servicing Agreement for any and all
purposes. Except as modified and expressly amended by this Amendment, the
Pooling and Servicing 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 Seller, the Master Servicer,
the Depositor, the Trustee and the Securities Administrator.
SECTION 5. Governing Law.
This Amendment shall be construed in accordance with the substantive
laws of the State of New York (without regard to conflict of law principles) and
the obligations, rights and remedies of the parties hereto shall be determined
in accordance with such laws.
SECTION 6. 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 7. Section Headings.
The section headings herein are for convenience of reference only, and
shall not limit or otherwise affect the meaning hereof.
SECTION 8. Counterparts.
This Amendment may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
[signature pages follow]
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IN WITNESS WHEREOF, the Depositor, the Seller, the Master Servicer, the
Trustee and the Securities Administrator have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the day and
year first above written.
BEAR XXXXXXX ASSET BACKED
SECURITIES, INC.,
as Depositor
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
EMC MORTGAGE CORPORATION,
as Seller and Master Servicer
By:/s/ Xxxxxx Xxxxx
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Name: Xxxxxx Xxxxx
Title: President
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee and Securities
Administrator
By:/s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Vice President
