SERVICER RESIGNATION, APPOINTMENT, ASSUMPTION AND AMENDMENT AGREEMENT
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ CAPITAL I INC. TRUST 2002-NC5
THIS SERVICER RESIGNATION, APPOINTMENT, ASSUMPTION AND AMENDMENT
AGREEMENT, dated as of December 1, 2004 (the "Agreement"), is by and among
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ CAPITAL I INC. ("Depositor"), THE PROVIDENT BANK
("Provident" or "Servicer"), NC CAPITAL CORPORATION ("Responsible Party"),
▇▇▇▇▇▇ LOAN SERVICING LP ("▇▇▇▇▇▇" or "Successor Servicer"), and DEUTSCHE BANK
NATIONAL TRUST COMPANY, as trustee ("Trustee"):
W I T N E S S E T H:
WHEREAS, the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ CAPITAL I INC. TRUST 2002-NC5 (the
"Trust") was created pursuant to the Pooling and Servicing Agreement identified
on Schedule 1.1.A hereto (as amended from time to time, the "Servicing
Agreement") among Depositor, Servicer, Responsible Party and Trustee;
WHEREAS, Provident is the Servicer under the Servicing Agreement;
WHEREAS, Provident desires to resign as Servicer pursuant to Section 6.04
of the Servicing Agreement and have ▇▇▇▇▇▇ appointed as a successor Servicer in
accordance with provisions of that Section;
WHEREAS, Trustee and Depositor desire to accept the resignation of
Provident as Servicer, and acknowledge the succession of ▇▇▇▇▇▇ to Provident as
Servicer pursuant to Sections 6.04 and 10.01 of the Servicing Agreement; and
WHEREAS, the parties hereto desire to amend the Servicing Agreement
pursuant to Section 10.01 thereof to better effectuate the replacement of the
Servicer as provided herein.
NOW THEREFORE, for and in consideration of good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
1. Resignation, Assignment and Appointment of Servicer. (a) Provident
hereby (i) proposes that ▇▇▇▇▇▇ be appointed as successor Servicer to Provident
under the Servicing Agreement and the other Transaction Documents (if any), (ii)
resigns from its duties as Servicer under the Servicing Agreement and the other
Transaction Documents (if any), effective on the Closing Date, and (iii)
irrevocably assigns and otherwise conveys to ▇▇▇▇▇▇, effective on the Closing
Date, all of its right, title and interest in and to any and all of its rights
as Servicer under the Servicing Agreement and the other Transaction Documents
(if any).
(b) The parties hereto, subject to the requirements of Section 5 hereof,
hereby consent to the resignation of Provident as Servicer and the appointment
of ▇▇▇▇▇▇ as Servicer to replace Provident, find such appointment to be
acceptable and hereby acknowledge that pursuant to Sections 6.04 and 10.01 of
the Servicing Agreement, ▇▇▇▇▇▇ has been designated as Servicer under the
Transaction Documents for all purposes from and after the Closing Date. Neither
Trustee nor Successor Servicer shall have any responsibility or obligation for
any act or omission of the predecessor Servicer. Subject to the terms of the
Servicing Agreement, as clarified below (including without limitation any
indemnification obligations contained in Sections 6.05 and 8.12 thereof and the
standards of care set forth in Section 3.01(a) thereof, as clarified below,
which the parties hereto expressly agree shall survive Provident's resignation
as Servicer with respect to any actions or omissions by Provident prior to the
Closing Date), from and after the Closing Date, Provident shall be released from
and shall have no further obligations as Servicer under the Transaction
Documents. For purposes of clarity, the language contained in Section 3.01(a) of
the Servicing Agreement to the effect that (a) the Servicer shall service and
administer the Mortgage Loans in accordance with the terms of the Servicing
Agreement and the respective Mortgage Loans, and, to the extent consistent with
such terms, in the same manner in which it services and administers similar
mortgage loans for its own portfolio, giving due consideration to customary and
usual standards of practice of mortgage lenders and loan servicers administering
similar mortgage loans and (b) the Servicer shall service and administer the
Mortgage Loans in accordance with applicable state and federal law, shall be
deemed to require that, in the context of the transfer of servicing effectuated
by this Agreement (and in order to be in strict compliance with the provisions
of the Servicing Agreement), each of Provident and ▇▇▇▇▇▇, severally, shall be
required (i) to take such actions in connection with such servicing transfer as
are required by applicable state and federal law and (ii) subject to clause (i),
to conduct itself in connection with such transfer in a manner consistent with
the standards and practices usually employed by it in effecting servicing
transfers of mortgage loans similar to the Mortgage Loans, giving due
consideration to the customary and usual standards of practice of mortgage
lenders and loan servicers engaged in servicing transfers of servicing
obligations related to mortgage loans similar to the Mortgage Loans.
Additionally, each of Provident and ▇▇▇▇▇▇ shall: (A) reasonably cooperate with
Depositor and Trustee in connection with the Trust's satisfying the reporting
requirements under the Securities Exchange Act of 1934, as amended, and (B)
provide the information, letters, reports, and/or certifications required to be
provided by a Servicer pursuant to Sections 3.22, 3.23 and 8.12 of the Servicing
Agreement; in each case, with respect to the periods during which Provident or
▇▇▇▇▇▇, as applicable, served or is serving as Servicer.
(c) ▇▇▇▇▇▇ hereby (i) accepts the assignment of rights as Servicer by
Provident, (ii) accepts the appointment as Servicer under the Servicing
Agreement and the other Transaction Documents (if any), and (iii) assumes and
agrees to discharge the due and punctual performance and observance of each
covenant and condition to be performed and observed by the Servicer under the
Servicing Agreement and the other Transaction Documents (if any), in each case,
from and after the Closing Date.
(d) Promptly following the Closing Date, each account that, pursuant to the
terms of the Transaction Documents, is required to be established and maintained
by the Servicer shall thereafter be moved to and maintained by Successor
Servicer at Wachovia Bank National Association; provided, however, that such
accounts shall continue to be required to satisfy all requirements for such
accounts under the Transaction Documents. This Agreement shall be deemed to
satisfy any and all requirements contained in any Transaction Document for
notice of change in any such account.
2. Amendments to Servicing Agreement. Effective as of the Closing Date,
the Servicing Agreement is hereby amended as follows:
(a) Article I of the Servicing Agreement is hereby amended to add the
following definition:
Successor Servicer: ▇▇▇▇▇▇ Loan Servicing LP, as successor servicer
pursuant to that certain Servicer Resignation, Appointment,
Assumption and Amendment Agreement dated as of December 1, 2004,
among The Provident Bank, ▇▇▇▇▇▇ Loan Servicing LP, the Depositor,
the Responsible Party, and the Trustee.
(b) Subsection 3.02(b)(ii) of the Servicing Agreement shall be deleted in
its entirety and replaced with the following:
"(ii) an institution approved as a Title II Nonsupervised Lender by
the Federal Housing Administration or an institution that has
deposit accounts insured by the FDIC."
(c) Section 10.07 of the Servicing Agreement shall be deleted in its
entirety and replaced with the following:
"Section 10.07. Assignment; Sales; Advance Facilities.
Notwithstanding anything to the contrary contained herein,
except as provided in Section 6.02, this Agreement may not be
assigned by the Servicer without the prior written consent of the
Trustee and Depositor; provided, however, that:
(a) The Servicer is hereby authorized to enter into a
financing or other facility (any such arrangement, an "Advance
Facility"), the documentation for which complies with Sections
10.07(b), (c), (d), (e) and (g) below, under which (1) the Servicer
assigns or pledges its rights under this Agreement to be reimbursed
for any or all Advances and/or Servicing Advances to (i) a Person,
which may be a special-purpose bankruptcy-remote entity (an "SPV"),
(ii) a Person, which may simultaneously assign or pledge such rights
to an SPV or (iii) a lender (a "Lender"), which, in the case of any
Person or SPV of the type described in either of the preceding
clauses (i) or (ii), may directly or through other assignees and/or
pledgees, assign or pledge such rights to a Person, which may
include a trustee acting on behalf of holders of debt instruments
(any such Person or any such Lender, an "Advance Financing Person"),
and/or (2) an Advance Financing Person agrees to fund all of the P&I
Advances and/or Servicing Advances required to be made by the
Servicer pursuant to this Agreement. No consent of the Trustee,
Certificateholders or any other party shall be required before the
Servicer may enter into an Advance Facility nor shall the Trustee or
the Certificateholders be a third party beneficiary of any
obligation of an Advance Financing Person to the Servicer.
Notwithstanding the existence of any Advance Facility under which an
Advance Financing Person agrees to fund P&I Advances and/or
Servicing Advances, (A) the Servicer (i) shall remain obligated
pursuant to this Agreement to make P&I Advances and/or Servicing
Advances pursuant to and as required by this Agreement and (ii)
shall not be relieved of such obligations by virtue of such Advance
Facility and (B) neither the Advance Financing Person nor any
Servicer's Assignee (as hereinafter defined) shall have (i) any
right to proceed against or otherwise contact any Mortgagor for the
purpose of collecting any payment that may be due with respect to
any related Mortgage Loan or enforcing any covenant of such
Mortgagor under the related Mortgage Loan documents or (ii), except
as expressly set forth in Section 10.07(d) with respect to the
establishment of the Advance Facility Account, the deposit of
amounts therein and the remittance of amounts therefrom by the
Trustee, any rights under or in respect of this Agreement that are
any greater than the rights of the Servicer hereunder.
(b) If the Servicer enters into an Advance Facility, the
Servicer and the related Advance Financing Person shall deliver to
the Trustee at the address set forth in Section 10.05 hereof, and to
the Class A-2 Certificate Insurer at the address for such entity
furnished to the Servicer by the Class A-2 Certificate Insurer, a
written notice (an "Advance Facility Notice"), stating (i) the
identity of the Advance Financing Person, (ii) the identity of the
Person (the "Servicer's Assignee") that will, subject to
satisfaction of the requirements in Section 10.07(d) hereof, have
the right to receive reimbursements of previously ▇▇▇▇▇▇▇▇▇▇▇▇ ▇&▇
Advances and/or Servicing Advances ("Advance Reimbursement Amounts")
and (iii) that the Advance Financing Person and Servicer's Assignee
have each been provided with copies of this Agreement, including
this Section 10.07 and agree to be bound by the provisions of this
Section 10.07 and acknowledges that its rights may be exercised only
as provided, and subject to the conditions, herein. The Advance
Facility Notice shall be executed by the Advance Financing Person
and the Servicer's Assignee. The related Advance Financing Person
shall, prior to the Advance Facility becoming applicable to P&I
Advances and Servicing Advances hereunder, also deliver to the Class
A-2 Certificate Insurer at the address for such entity furnished to
the Servicer by the Class A-2 Certificate Insurer a letter agreement
of such Advance Financing Person containing agreements and
acknowledgments by the Advance Financing Person with respect to this
Agreement, such letter agreement to be in form acceptable to the
Class A-2 Certificate Insurer (as evidenced by the Class A-2
Certificate Insurer's written acceptance thereof). Advance
Reimbursement Amounts (i) shall consist solely of amounts in respect
of P&I Advances and/or Servicing Advances for which the Servicer
would be permitted to reimburse itself in accordance with Section
3.11 hereof, assuming the Servicer had made the related P&I
Advance(s) and/or Servicing Advance(s) and (ii) shall not consist of
amounts payable to a successor Servicer in accordance with Section
3.11 hereof to the extent permitted under Section 10.07(g) below.
(c) Notwithstanding the existence of an Advance Facility, the
Servicer, on behalf of the Advance Financing Person, shall be
entitled to continue to withdraw Advance Reimbursement Amounts in
accordance with Section 3.11 hereof. The Servicer's entitlement to
withdraw Advance Reimbursement Amounts may be terminated by the
Advance Financing Person pursuant to a written notice executed by
the Advance Financing Person (an "Advance Facility Default Notice")
delivered to the Trustee and the Depositor, with a copy to the Class
A-2 Certificate Insurer, in the manner set forth in Section 10.05
hereof.
(d) Upon receipt by the Trustee of an Advance Facility Default
Notice, (i) the Servicer shall no longer be entitled to receive
Advance Reimbursement Amounts in accordance with Section 3.11 hereof
to the extent such reimbursements have been funded by the Advance
Financing Person, and the Servicer's Assignee with respect to such
Advance Facility shall immediately have the right to receive all
such related Advance Reimbursement Amounts in the manner set forth
in this Section 10.07(d), and (ii) the Trustee shall establish a
segregated, non-interest bearing trust account in the name of the
Servicer's Assignee (the "Advance Facility Account"). Thereafter,
within two (2) Business Days of the Servicer's receipt of Advance
Reimbursement Amounts in the manner set forth in Section 3.11, the
Servicer (in the case of a successor servicer, on the basis of
information provided to it by the prior Servicer) will identify such
amounts and, to the extent funded by the Advance Financing Person,
remit them to the Trustee. The Trustee shall, within a reasonable
time after receipt of such Advance Reimbursement Amounts from the
Servicer, deposit such Advance Reimbursement Amounts into the
Advance Facility Account. On the last Business Day of each calendar
week following the receipt of an Advance Facility Default Notice,
the Trustee shall wire to the Servicer's Assignee identified in the
related Advance Facility Default Notice, at the payment instructions
specified in the Advance Facility Default Notice, any and all funds
contained in the Advance Facility Account, less the Account Fee (as
defined below). If the Trustee is required to establish an Advance
Facility Account pursuant to this Section 10.07(d), the Trustee
shall be entitled to charge the Servicer such fees and expenses (the
"Account Fee") as agreed by the Servicer pursuant to a separate fee
letter. The Trustee shall withdraw the Account Fee from funds on
deposit in the Advance Facility Account prior to remitting such
funds to the Servicer's Assignee. The funds in the Advance Facility
Account shall be held uninvested. In no event may the Trustee look
to any other source of Trust assets for payment of the Account Fee.
The obligations of each of the Servicer and the Trustee under this
clause (d) shall continue until the Trustee receives written notice
from the Advance Financing Person to close the Advance Facility
Account.
(e) An Advance Facility may be terminated by the joint written
direction of the Servicer and the Advance Financing Person. Written
notice of such termination shall be delivered to the Trustee in the
manner set forth in Section 10.05 hereof. Except as expressly set
forth in Section 10.07(d) with respect to the establishment of the
Advance Facility Account, the deposit of amounts therein and the
remittances of amounts therefrom by the Trustee, (i) neither the
Depositor nor the Trustee shall, as a result of the existence of any
Advance Facility, have any additional duty or liability with respect
to the calculation or payment of any Advance Reimbursement Amount,
and (ii) neither of the Depositor nor the Trustee shall, as a result
of the existence of any Advance Facility, have any additional
responsibility, including, without limitation, to track or monitor
the administration of the Advance Facility or the payment of Advance
Reimbursement Amounts to the Servicer's Assignee. The Servicer shall
indemnify the Depositor, the Trustee, any successor Servicer and the
Trust Fund for any claim, loss, liability or damage resulting from
any claim by the Servicer, the Advance Financing Person, or the
Servicer's Assignee, except to the extent that such claim, loss,
liability or damage resulted from or arose out of negligence,
recklessness or willful misconduct on the part of the Depositor, the
Trustee or any successor Servicer, as the case may be, or failure by
the successor Servicer to remit funds to the extent required by this
Agreement or the commission of any act or omission to act by the
successor Servicer and the passage of any applicable cure or grace
period, such that an Event of Default under this Agreement occurs or
such entity is subject to termination for cause under this
Agreement. The Servicer shall maintain and provide to any successor
Servicer and, upon request, the Trustee, a detailed accounting on a
loan-by-loan basis as to amounts advanced by, pledged or assigned
to, and reimbursed to the Advance Financing Person. The successor
Servicer shall be entitled to rely on any such information provided
by the predecessor Servicer, and the successor Servicer shall not be
liable for any errors in such information. Notwithstanding the
foregoing, and for the avoidance of doubt, (i) the Servicer, the
Advance Financing Person and/or the Servicer's Assignee shall only
be entitled to reimbursement of Advance Reimbursement Amounts
hereunder pursuant to Section 3.11 and Section 10.07(d) of this
Agreement and shall be required to return to the Trustee, for the
benefit of the Certificateholders, all amounts, with interest,
withdrawn by it in error or that are in excess of the Servicer's
entitlement thereto under this Agreement, and shall not otherwise be
entitled to make withdrawals of, or receive, Advance Reimbursement
Amounts that shall be deposited in the Distribution Account pursuant
to Section 3.11 or Section 3.07(d) hereof, (ii) without limiting any
remedies relating to a breach of Servicer's obligations and except
for the Trustee's deduction of its Account Fee under Section
10.07(d), none of the Trustee or the Certificateholders shall have
any right to, or otherwise be entitled to, receive any Advance
Reimbursement Amounts to which the Servicer or Servicer's Assignee,
as applicable, shall be entitled pursuant to Section 3.11 hereof,
and (iii) the P&I Advances and/or Servicing Advances financed by
and/or pledged to the Advance Financing Person pursuant to an
Advance Facility are obligations owed to the Servicer on a
non-recourse basis payable only from the cash flows and proceeds
received under this Agreement for reimbursement of P&I Advances
and/or Servicing Advances only to the extent provided herein, and
the Trustee and the Trust are not, as the result of the existence of
any Advance Facility, obligated or liable to repay from the assets
of the Trust any P&I Advances and/or Servicing Advances financed by
the Advance Financing Person.
(f) An Advance Financing Person who receives an assignment or
pledge of rights to receive Advance Reimbursement Amounts and/or
whose obligations are limited to the funding of P&I Advances and/or
Servicing Advances pursuant to an Advance Facility shall not be
required to meet the criteria for qualification as a Subservicer.
(g) As between a predecessor Servicer and its Advance
Financing Person, on the one hand, and a successor Servicer and its
Advance Financing Person, if any, on the other hand, Advance
Reimbursement Amounts on a loan-by-loan basis with respect to each
Mortgage Loan as to which a P&I Advance and/or Servicing Advance
shall have been made and be outstanding shall be allocated on a
"first-in, first out" (FIFO) basis. In the event the Servicer's
Assignee shall have received some or all of an Advance Reimbursement
Amount related to P&I Advances and/or Servicing Advances that were
made by a Person other than such predecessor Servicer or its related
Advance Financing Person in error, then such Servicer's Assignee
shall be required to remit any portion of such Advance Reimbursement
Amount to each Person entitled to such portion of such Advance
Reimbursement Amount. Without limiting the generality of the
foregoing, the Servicer shall remain entitled to be reimbursed by
the Advance Financing Person for all P&I Advances and/or Servicing
Advances funded by the Servicer to the extent the related Advance
Reimbursement Amounts have not been assigned or pledged to such
Advance Financing Person or Servicer's Assignee.
(h) For purposes of Section 4.01(d) hereof, any Nonrecoverable
P&I Advance or Nonrecoverable Servicing Advance referred to therein
may have been made by a certifying Servicer or any predecessor
Servicer. In making its determination that any Advance or Servicing
Advance theretofore made has become a Nonrecoverable P&I Advance or
Nonrecoverable Servicing Advance, the Servicer shall apply the same
criteria in making such determination regardless of whether such P&I
Advance or Servicing Advance shall have been made by the Servicer or
any predecessor Servicer.
(i) Any amendment to this Section 10.07 or to any other
provision of this Agreement that may be necessary or appropriate to
effect the terms of an Advance Facility as described generally in
this Section 10.07, including amendments to add provisions relating
to a successor Servicer, may be entered into by the Trustee, the
Depositor and the Servicer with the consent of the Class A-2
Certificate Insurer and without the consent of any
Certificateholder, provided such amendment complies with Section
10.01 hereof. All reasonable costs and expenses (including
attorneys' fees) of each party hereto of any such amendment shall be
borne solely by the Servicer requesting such amendment. Prior to
entering into an Advance Facility, the Servicer shall notify the
Advance Financing Person under such Advance Facility in writing
that: (a) the P&I Advances and/or Servicing Advances financed by
and/or pledged to an Advance Financing Person under any Advance
Facility are obligations owed to the Servicer payable only from the
cash flows and proceeds received under this Agreement for
reimbursement of P&I Advances and/or Servicing Advances only to the
extent provided herein, and the Trustee and the Trust are not, as a
result of the existence of any Advance Facility, obligated or liable
to repay from the assets of the Trust any P&I Advances and/or
Servicing Advances financed by the Advance Financing Person; (b)
prior to the occurrence of a default under the Advance Facility and
the delivery by the Advance Financing Person to the Trustee and the
Depositor of an Advance Facility Notice, the Servicer will be
responsible for remitting to the Advance Financing Person the
applicable amounts collected by it as reimbursement for P&I Advances
and/or Servicing Advances funded by the Advance Financing Person,
subject to the provisions of this Agreement; (c) following the
occurrence of a default under the Advance Facility and the delivery
by the Advance Financing Person of an Advance Facility Default
Notice in accordance with Section 10.7(c), the Trustee shall be
responsible for remitting Advance Reimbursements (as and when
payable in accordance with this Agreement) to the Servicer's
Assignee as more specifically provided in Section 10.07(d) hereof);
(d) the pledge, if any, of Servicer's rights to the Advance
Reimbursements to the Advance Financing Person under the Advance
Facility conveys no rights (such as a right to fees after the
removal of the Servicer or the right to remove the Servicer and
become a substitute servicer) under this Agreement (except as
specifically set forth in Section 10.07(d) hereof), or against the
Trust, the Trustee (except as specifically set forth in Section
10.07(d) hereof), the Certificateholders or the Class A-2
Certificate Insurer, or any person other than the Servicer, and (e)
the Trustee shall not have any responsibility to track or monitor
the administration of the financing arrangement between the Servicer
and any Advance Financing Person."
(d) Section 6.02 of the Servicing Agreement shall be amended by adding the
following paragraph at the end thereof:
"Notwithstanding the provisions of the first paragraph of this
Section 6.02, the Depositor, the Servicer, the Responsible Party,
and the Trustee acknowledge and agree that the Successor Servicer is
a limited partnership formed under the laws of Delaware. Successor
Servicer hereby agrees to keep in full effect its existence, rights
and franchises as a limited partnership under the laws of the State
of Delaware and will obtain and preserve its qualification to do
business in each jurisdiction in which it is or shall be necessary
to protect the validity and enforceability of the Agreement or any
of the Mortgage Loans or to perform its respective duties under the
Agreement, as modified from time to time."
(e) From and after the Closing Date, all references in the Servicing
Agreement and the Transaction Documents to "Servicer" shall refer to ▇▇▇▇▇▇ as
the successor Servicer until such time, if any, as a successor shall have taken
its place in accordance with the applicable provisions of the Transaction
Documents.
3. Representations and Warranties of ▇▇▇▇▇▇. (a) ▇▇▇▇▇▇, as successor
Servicer, hereby represents and warrants as of the Closing Date as follows:
(i) ▇▇▇▇▇▇ is a limited partnership formed under the laws of
Delaware, is validly existing and in good standing under the laws of the
state of its organization and has the organizational power and authority
to own its assets and to transact the business in which it is currently
engaged. ▇▇▇▇▇▇ is duly qualified to do business as a foreign organization
and is in good standing in each jurisdiction in which the character of the
business transacted by it or any properties owned or leased by it requires
such qualification and in which the failure so to qualify would have a
material adverse effect on its business, properties, assets, or condition
(financial or otherwise);
(ii) ▇▇▇▇▇▇ has the organizational power and authority to make,
execute, deliver, and perform this Agreement and all of the transactions
contemplated under this Agreement and to perform the duties of the
Servicer under the Servicing Agreement and other Transaction Documents (if
any), and has taken all necessary organizational action to authorize the
execution, delivery, and performance of this Agreement. When executed and
delivered, this Agreement will constitute Litton's legal, valid and
binding obligation enforceable in accordance with its terms, except as
enforcement of such terms may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally and
by the availability of equitable remedies;
(iii) ▇▇▇▇▇▇ is not required to obtain the consent of any other party
or any consent, license, approval or authorization from, or registration
or declaration with, any governmental authority, bureau or agency in
connection with the execution, delivery, performance, validity, or
enforceability of this Agreement, and the performance of the duties of the
Servicer under the Servicing Agreement and other Transaction Documents (if
any), except for such consent, license, approval or authorization, or
registration or declaration, as shall have been obtained or filed, as the
case may be, prior to the date hereof;
(iv) The execution, delivery and performance of this Agreement by
▇▇▇▇▇▇ will not violate any provision of any existing law or regulation or
any order or decree of any court applicable to ▇▇▇▇▇▇ or any of Litton's
properties or any provision of its organizational documents, or constitute
a material breach of any mortgage, indenture, contract or agreement to
which it is a party or by which it may be bound;
(v) ▇▇▇▇▇▇ is an approved servicer for ▇▇▇▇▇▇ ▇▇▇ and an approved
servicer for FHLMC in good standing;
(vi) No litigation is pending against ▇▇▇▇▇▇ that would materially
and adversely affect the execution, delivery or enforceability of this
Agreement or the ability of ▇▇▇▇▇▇ to service the Mortgage Loans or to
perform any of its other obligations under the Transaction Documents in
accordance with the terms hereof or thereof;
(vii) Litton's computer and other systems used in servicing the
Mortgage Loans operate in a manner such that ▇▇▇▇▇▇ can service the
Mortgage Loans in accordance with the terms of the Transaction Documents;
and
(viii) ▇▇▇▇▇▇ has a net worth of at least $15,000,000.
(b) The representations and warranties set forth in this Section 3 shall
survive the closing of this Agreement. Upon discovery of a breach of any
representation or warranty that materially and adversely affects the interests
of the Certificateholders or the Class A-2 Certificate Insurer, the Person
discovering such breach shall give prompt written notice to Depositor, Trustee
and the Class A-2 Certificate Insurer.
(c) From and after the appointment of ▇▇▇▇▇▇ as Servicer under the
Transaction Documents, the representations and warranties of ▇▇▇▇▇▇ set forth in
Section 3(a) shall constitute, for all purposes, the representations and
warranties of the Servicer as otherwise stated in Section 2.03(a) in the
Servicing Agreement.
4. Representations and Warranties of Provident. (a) Provident hereby
represents and warrants as of the Closing Date as follows:
(i) Provident is an Ohio banking corporation, validly existing and
in good standing under the laws of the state of its organization and has
the organizational power and authority to own its assets and to transact
the business in which it is currently engaged. Provident is duly qualified
to do business as a foreign organization and is in good standing in each
jurisdiction in which the character of the business transacted by it or
any properties owned or leased by it requires such qualification and in
which the failure so to qualify would have a material adverse effect on
its business, properties, assets, or condition (financial or other);
(ii) Provident has the organizational power and authority to make,
execute, deliver, and perform this Agreement and all of the transactions
contemplated under this Agreement and has taken all necessary
organizational action to authorize the execution, delivery, and
performance of this Agreement. When executed and delivered, this Agreement
will constitute Provident's legal, valid and binding obligation
enforceable in accordance with its terms, except as enforcement of such
terms may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally and by the availability of
equitable remedies;
(iii) Provident is not required to obtain the consent of any other
party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or
agency in connection with the execution, delivery, performance, validity,
or enforceability of this Agreement, except for such consent, license,
approval or authorization, or registration or declaration, as shall have
been obtained or filed, as the case may be, prior to the date hereof; and
(iv) The execution, delivery and performance of this Agreement by
Provident will not violate any provision of any existing law or regulation
or any order or decree of any court applicable to Provident or any of
Provident's properties or any provision of its organizational documents,
or constitute a material breach of any mortgage, indenture, contract or
agreement to which it is a party or by which it may be bound.
(b) The representations and warranties set forth in this Section 4 shall
survive the closing of this Agreement. Upon discovery of a breach of any
representation or warranty which materially and adversely affects the interests
of the Certificateholders or the Class A-2 Certificate Insurer, the Person
discovering such breach shall give prompt written notice to Depositor, Trustee
and the Class A-2 Certificate Insurer. Within 30 days of its discovery or its
receipt of notice of breach or, with the prior written consent of a Responsible
Officer of Trustee, such longer period specified in such consent, Provident
shall cure such breach in all material respects.
5. Pre-Closing, Closing and Conditions to Close. (a) On or after the
Pre-Closing Date, Servicer and Successor Servicer shall send any notices of the
proposed transfer of servicing required under the Federal Real Estate Settlement
Procedures Act. On or before the Pre-Closing Date, the parties shall deliver or
cause to be delivered in escrow, to the Closing Escrow Agent, fully executed
originals of the following items, in form and substance satisfactory to each of
Depositor, Trustee, Servicer, and Successor Servicer:
(i) a fully executed copy of this Agreement;
(ii) a Confirmation Letter from each Rating Agency or a letter from
each Rating Agency confirming that each such Rating Agency is prepared to
deliver a Confirmation Letter on the Closing Date and a Shadow Rating
Confirmation from each Rating Agency or a letter from each Rating Agency
confirming that each such Rating Agency is prepared to deliver a Shadow
Rating Confirmation on the Closing Date;
(iii) an Officer's Certificate of Provident to the effect that (A)
this Agreement and the other transactions contemplated hereby have been
duly authorized in accordance with the requirements of Provident's
organizational documents and applicable law, and (B) the officers
authorized to execute and deliver such documents hold the offices and have
the signatures indicated thereon;
(iv) an Officer's Certificate of ▇▇▇▇▇▇ to the effect that (A) this
Agreement and the other transactions contemplated hereby have been duly
authorized in accordance with the requirements of Litton's organizational
documents and applicable law, and (B) the officers authorized to execute
and deliver such documents hold the offices and have the signatures
indicated thereon;
(v) a certification by Servicer that this Agreement and the
amendments contained herein are being executed and delivered in accordance
with Sections 6.04 and 10.01 of the Servicing Agreement;
(vi) opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel to
Provident, addressed to Depositor, Trustee, Responsible Party, the Class
A-2 Certificate Insurer and the Rating Agencies, to be dated as of the
Closing Date, to the effect that the transfers and modifications effected
by this Agreement will not adversely affect the qualification of any REMIC
created under the Servicing Agreement or result in the imposition of any
REMIC related prohibited transactions tax;
(vii) opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel to
Provident, addressed to Depositor, Trustee, Responsible Party, the Class
A-2 Certificate Insurer and the Rating Agencies, to be dated as of the
Closing Date, to the effect that (A) this Agreement is permitted under the
Servicing Agreement, (B) the requirements of the Servicing Agreement for
Trustee's entering into the Amendment have been satisfied, and (C) the
changes in the Transaction Documents as embodied in this Agreement do not
adversely affect, in any material respect, the interests of any
Certificateholder;
(viii) opinions of ▇▇▇▇▇▇▇, Muething & ▇▇▇▇▇▇▇, P.L.L., special Ohio
counsel to Provident, addressed to Depositor, Trustee, Responsible Party,
the Class A-2 Certificate Insurer and the Rating Agencies, to be dated as
of the Closing Date, as to due execution and authority for each document
executed by Provident in connection herewith;
(ix) opinions of ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, LLP, special counsel to
▇▇▇▇▇▇, addressed to Depositor, Trustee, Responsible Party, the Class A-2
Certificate Insurer and the Rating Agencies, to be dated as of the Closing
Date, as to due execution and authority of ▇▇▇▇▇▇ for this Agreement, and
that this Agreement constitutes a valid, binding and enforceable agreement
of ▇▇▇▇▇▇ in accordance with its terms.
(b) Release of the escrow created pursuant to Section 5(a) above, and the
effectiveness of (I) the resignation of Provident as Servicer, (II) the
appointment of ▇▇▇▇▇▇ as successor Servicer, and (III) the amendments to the
Servicing Agreement and Transaction Documents provided for herein are
conditioned on the occurrence of each of the following conditions precedent:
(i) Provident shall have consummated the sale of certain other
assets it holds to ▇▇▇▇▇▇;
(ii) The Closing Escrow Agent shall have received a written consent
(which may be delivered in paper or electronic form, including without
limitation via e-mail) to the release of such escrow from each Person
delivering signatures pages, documents, instruments or any other item to
the Closing Escrow Agent pursuant to Section 5(a) above or pursuant to a
separate escrow letter in connection therewith;
(iii) Each of the Confirmation Letters referenced in Section 5(a)(ii)
shall have been delivered (and delivery of such Confirmation Letters shall
be deemed to satisfy any requirements of the Servicing Agreement,
including without limitation Sections 10.01 and 10.05 thereof, for
delivery of written notice to the Rating Agencies of the Agreement or its
contents), and each of the Shadow Rating Confirmations referenced in
Section 5(a)(ii) shall have been delivered; and
(iv) The Closing Escrow Agent shall have received certifications from
each of Provident, as Servicer, and ▇▇▇▇▇▇, as successor Servicer, of the
date of mailing of notices of servicing transfer required under the
Federal Real Estate Settlement Procedures Act, and at least fifteen (15)
days shall have passed since the sending of such notices.
(c) Upon satisfaction of each of the conditions listed in Section 5(b), the
Closing Date shall occur and the Closing Escrow Agent shall date each of the
documents so held and release them from such escrow, and all parts of this
Agreement shall immediately become effective.
(d) In the event that the conditions listed in Section 5(b) are not
satisfied on or before December 8, 2004, or if Provident shall, at any time,
notify Trustee (with a copy to the Closing Escrow Agent) in writing that any
condition set forth in Section 5(b) cannot be met, then the Closing Escrow Agent
shall promptly (without further action by any party) return to each Person
delivering any signatures pages, documents, instruments or any other item
pursuant to Section 5(a) above or pursuant to a separate escrow letter in
connection therewith any such items so delivered by such Person.
(e) Upon the Closing Escrow Agent's receipt of notice as provided in
Section 5(d), all obligations of each party hereunder shall terminate and no
party hereto shall have any liability hereunder, excepting only the obligations
and rights of the Closing Escrow Agent pursuant to Section 5(d).
6. Address for Notices. The addresses for purposes of all notices and
correspondence related to the Servicing Agreement and Transaction Documents are
set forth on Schedule 6 hereto.
7. Capitalized Terms. Capitalized terms used and not defined in this
Agreement shall have the meanings assigned to such terms in the Servicing
Agreement. The following terms shall have the following meanings.
"Closing Date" means December 1, 2004, or such later date that is a
Business Day and on which the conditions precedent set forth in Section
5(b) have been satisfied.
"Closing Escrow Agent" means ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP, special counsel
to Provident, or such other law firm or Person as may be mutually agreed
upon by the parties hereto.
"Confirmation Letter" shall mean a letter issued by any applicable
Rating Agency to the effect that neither (a) the resignation of Provident
as Servicer under the Servicing Agreement and appointment of ▇▇▇▇▇▇ as
successor Servicer thereunder, nor (b) the amendments effectuated by this
Agreement, will adversely affect the then current ratings on the
Certificates then being rated.
"Pre-Closing Date" shall mean November 10, 2004, or such later date
designated by Provident that is a Business Day.
"Shadow Rating Confirmation" shall mean a letter issued by any
applicable Rating Agency to the effect that neither (a) the resignation of
Provident as Servicer under the Servicing Agreement and appointment of
▇▇▇▇▇▇ as successor Servicer thereunder, nor (b) the amendments
effectuated by this Agreement, will adversely affect the then current
ratings on the Class A-2 Certificates (without regard to the existence of
the Class A-2 Certificate Insurance Policy).
"Transaction Document" means the documents set forth on Schedule
1.1.A hereto.
8. Governing Law. This Agreement shall be governed by, in all respects,
including as to validity, interpretation and effect, the internal laws of the
State of New York applicable to contracts entirely performed therein.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
counterparts shall together constitute but one and the same instrument. Delivery
of an executed counterpart of a signature page to this Agreement by facsimile
transmission (including by electronic transmission of a scanned file in pdf
format) shall be as effective as delivery of a manually executed counterpart of
this Agreement.
10. Ratification. Except as modified and superceded by this Agreement, the
provisions of the Transaction Documents are ratified and confirmed and shall
continue in full force and effect.
11. Benefit; Third Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, the Certificateholders, the
Class A-2 Certificate Insurer, the Closing Escrow Agent and their respective
successors and permitted assigns. Except as otherwise expressly provided in this
Agreement, no other person will have any right or obligation hereunder.
12. Acknowledgement of the Parties. Each party to this Agreement hereby
represents and warrants to the Class A-2 Certificate Insurer, as of the Closing
Date, that it has not assigned any of its rights or obligations under this
Agreement, or waived (a) delivery of any item described in Section 5(a) of this
Agreement or (b) any condition to the release of escrow and the effectiveness of
this Agreement contained in Section 5(b) of this Agreement.
[SIGNATURES COMMENCE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed on their behalf by the undersigned, thereunto duly authorized, as
of the day and year first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ CAPITAL I
INC., as a Depositor
By ___________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Director
THE PROVIDENT BANK, as a Servicer
By ___________________________________
Name:__________________________________
Title: ________________________________
NC CAPITAL CORPORATION, as a
Responsible Party
By ___________________________________
Name:__________________________________
Title: ________________________________
▇▇▇▇▇▇ LOAN SERVICING LP, as Successor
Servicer
By: ___________________________________
Name:_______________________________
Title:______________________________
DEUTSCHE BANK NATIONAL TRUST COMPANY,
as Trustee
By ____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
By ____________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate
▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ LLP, as
Closing Escrow Agent
By ________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Partner
FINANCIAL SECURITY ASSURANCE
INC., as Class A-2
Certificate Insurer
By ________________________________
Name: ▇▇▇▇▇ ▇▇▇
Title: Managing Director
SCHEDULE 1.1.A
POOLING AND SERVICING AGREEMENT
AND OTHER TRANSACTION DOCUMENTS
Pooling and Servicing Agreement, dated as of October 1, 2002, among ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Capital I Inc., a Delaware corporation, as depositor, The
Provident Bank, an Ohio corporation, as servicer, NC Capital Corporation, a
California corporation, as responsible party, and Deutsche Bank National Trust
Company, a national banking association, as trustee.
SCHEDULE 6
ADDRESSES FOR NOTICES
If to Depositor: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
If to Provident: ▇. ▇▇▇▇▇▇▇ Case, Jr.
Executive Vice President; Loan Administration
National City Mortgage Co.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Loan Servicing LP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
If to the Responsible NC Capital Corporation
Party: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇@▇▇▇▇.▇▇▇
If to the Trustee: Deutsche Bank National Trust Co.
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Trust Administration - MS02C5
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇
If to Class A-2 Financial Security Assurance Inc.
Certificate Insurer: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Managing Director - Transaction
Oversight (MSDW 2002-NC5)
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇,
confirmation: 212-826-0100
If to the Closing Escrow ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Agent: ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile Number: ▇▇▇-▇▇▇-▇▇▇▇