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AMENDMENT NO. 2
Dated as of April 22, 2004
to
POOLING AND SERVICING AGREEMENT
Dated as of August 1, 2001
among
BEAR XXXXXXX ASSET BACKED SECURITIES, INC.,
Depositor
EMC MORTGAGE CORPORATION,
Seller and Master Servicer
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
(as successor to Xxxxx Fargo Bank Minnesota, National
Association)
Trustee and Securities Administrator
______________________________________
BEAR XXXXXXX ASSET BACKED SECURITIES TRUST 2001-AC1
ASSET-BACKED CERTIFICATES, SERIES 2001-AC1
______________________________________
THIS AMENDMENT NO. 2, dated as of April 27, 2004 (the "Amendment"), to
the Pooling and Servicing Agreement (the "Pooling and Servicing Agreement"),
dated as of August 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, NATIONAL ASSOCIATION (as successor to
Xxxxx Fargo Bank Minnesota, National Association), a national banking
association, as trustee (the "Trustee") and securities administrator (the
"Securities Administrator"), as amended by Amendment Xx. 0, xxxxx xx xx Xxxx 00,
0000 (xx amended, the "Pooling and Servicing Agreement").
W I T N E S S E T H
WHEREAS, the Depositor, the Seller, the Master Servicer, the Securities
Administrator and the Trustee entered into the Pooling and Servicing Agreement;
WHEREAS, the Depositor and the Seller desire to amend certain
provisions of the Pooling and Servicing Agreement to provide for the payment of
certain amounts to the holders of the Class M-1, Class M-2 and Class B
Certificates in connection with the allocation of Realized Losses to such
classes of Certificates.
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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 Securities Administrator and the Trustee and
the holders of each Class of Certificates affected thereby for the purpose of
adding any provisions to the Pooling and Servicing Agreement or changing in any
manner or eliminating any of the provisions thereof or of modifying in any
manner the rights of the Holders of such Class or Classes of affected
Certificates, upon the satisfaction of certain conditions set forth therein;
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 definition shall be added to Section 1.01:
"RESERVE FUND: Shall mean the separate trust account created
and maintained by the Trustee pursuant to Section 5.07 hereof.
(ii) The definition of Trust Fund shall be amended as follows:
(A) by adding the words "the Reserve Fund," to
the beginning of clause (ii) thereof; and
(B) by adding the following sentence to the end
thereof: "The Reserve Fund shall constitute
an asset of the Trust Fund but will not be
included in any of REMIC I, REMIC II or
REMIC III.
(b) Article V of the Pooling and Servicing Agreement is hereby amended
by adding the following Section 5.07 to the end thereof:
"Section 5.07 RESERVE FUND.
(a) The Trustee shall establish and maintain a Reserve Fund on behalf
of the Class M-1, Class M-2 and Class B Certificateholders. The Reserve Fund
must be an Eligible Account. The Reserve Fund shall be in the name of the
Trustee for the benefit of the Class M-1, Class M-2 and Class B
Certificateholders and designated "Xxxxx Fargo Bank, National Association, in
trust for the
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registered holders of Bear Xxxxxxx Asset Backed Securities, Inc., Asset-Backed
Certificates, Series 2001-AC1, Class M-1, Class M-2 and Class B". The Holder of
the Class R-III Certificates shall remit to the Trustee on the date of this
Amendment an amount equal to $1,000,000.00 for deposit in the Reserve Fund. On
each Distribution Date as to which there is an Applied Realized Loss Amount with
respect to any Class M-1, Class M-2 or Class B Certificate, the Trustee has been
directed by the Class R-III Certificateholder to, and therefore will, remit to
the Class or Classes of Certificates as to which the Applied Realized Loss
Amount was allocated, in accordance with Section 5.04(a), any Unpaid Realized
Loss Amounts remaining unreimbursed after making the required distributions
pursuant to clauses THIRD, FOURTH AND FIFTH of Section 5.04(a).
(b) The Reserve Fund is an "outside reserve fund" within the meaning of
Treasury Regulation ss.1.860G-2(h) and shall be an asset of the Trust Fund but
not an asset of any REMIC. The Trustee on behalf of the Trust shall be the
nominal owner of the Reserve Fund. The Class R-III Certificateholder shall be
the beneficial owner of the Reserve Fund, subject to the power of the Trustee to
remit such funds held therein to the holders of the Class M-1, Class M-2 and
Class B Certificates as described in clause (a) above. Amounts in the Reserve
Fund shall, at the direction of the Class R-III Certificateholder, be invested
in Permitted Investments that mature no later than the Business Day prior to the
next succeeding Distribution Date. If no investment direction is received by the
Trustee from the Class R-III Certificateholder, the Trustee shall invest the
funds in such account in Permitted Investments managed by the Trustee or an
affiliate of the kind described in clause (x) of the definition of Permitted
Investments. All net income and gain from such investments shall be distributed
to the Class R-III Certificateholder, not as a distribution in respect of any
interest in any REMIC, on such Distribution Date. All amounts earned on amounts
on deposit in the Reserve Fund shall be taxable to the Class R-III
Certificateholder. Any losses on such investments shall be deposited in the
Reserve Fund by the Class R-III Certificateholder out of its own funds
immediately as realized."
SECTION 2. 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.
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SECTION 3. 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 4. 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 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. 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/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Vice President
EMC MORTGAGE CORPORATION,
as Seller and Master Servicer
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION
as Trustee and Securities
Administrator
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxx
Title: Vice President
CONSENTED AND AGREED:
BEAR, XXXXXXX SECURITIES CORP.
Holder of 100% Percentage Interest of the
Class R-III Certificates
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Senior Managing Director
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