EXHIBIT 4
EXECUTION COPY
AMENDMENT TO THE POOLING AND SERVICING AGREEMENT
This AMENDMENT TO THE POOLING AND SERVICING AGREEMENT, dated as of
March 28, 2005 (the "Amendment"), among XXXXXX XXXXXXX CAPITAL I INC., formerly
known as XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC., a Delaware corporation, as
depositor (the "Depositor"), XXXXXX LOAN SERVICING LP, a Delaware limited
partnership (the "Servicer"), NC CAPITAL CORPORATION, a California corporation
(the "Responsible Party"), and DEUTSCHE BANK NATIONAL TRUST COMPANY, a national
banking association, as trustee (the "Trustee"), amends the Pooling and
Servicing Agreement, dated as of October 1, 2002 (the "Pooling and Servicing
Agreement"), among the Depositor, the Servicer, the Responsible Party, and the
Trustee, as amended by the Servicer Resignation, Appointment, Assumption and
Amendment Agreement, dated as of December 1, 2004, among the Depositor, the
Trustee, the Responsible Party, The Provident Bank and the Servicer.
RECITALS
WHEREAS, the parties hereto have entered into the Pooling and
Servicing Agreement relating to the Xxxxxx Xxxxxxx Xxxx Xxxxxx Capital I Inc.
Trust 2002-NC5;
WHEREAS, the parties hereto desire to modify the Pooling and
Servicing Agreement as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms. Except as amended below, capitalized terms used
herein but not defined herein have the respective meanings given them in the
Pooling and Servicing Agreement.
2. Amendments.
(a) The definition of "Available Funds" in Article I of the Pooling
and Servicing Agreement is hereby amended by deleting it in its entirety and
replacing it with the following: "Available Funds: With respect to any
Distribution Date and the Mortgage Loans to the extent received by the Trustee
(x) the sum of (i) all scheduled installments of interest (net of the related
Expense Fees) and principal due on the Due Date on such Mortgage Loans in the
related Due Period and received by the Servicer on or prior to the related
Determination Date, together with any P&I Advances in respect thereof; (ii) all
Condemnation Proceeds, Insurance Proceeds and Liquidation Proceeds received by
the Servicer during the related Prepayment Period (in each case, net of
unreimbursed expenses incurred in connection with a liquidation or foreclosure
and unreimbursed Advances, if any); (iii) all partial or full prepayments on the
Mortgage Loans received by the Servicer during the related Prepayment Period
together with all Compensating Interest, if applicable, thereon (excluding any
Prepayment Charges); (iv) all Substitution Adjustment Amounts with respect to
the substitutions of Mortgage Loans that occur during the month in which such
Distribution Date occurs; (v) amounts received with respect to such Distribution
Date as the Repurchase Price in respect of a Mortgage Loan repurchased by the
Responsible Party during the related Prepayment Period; and (vi) the proceeds
received with respect to the termination of the Trust Fund pursuant to clause
(a) of Section 9.01; reduced by (y) amounts in reimbursement for Advances
previously made with respect to the Mortgage Loans and other amounts as to which
the Servicer, the Depositor or the Trustee are entitled to be paid or reimbursed
pursuant to this Agreement."
(b) The definition of "Subordination Reduction Amount" in Article I
of the Pooling and Servicing Agreement is hereby amended by deleting it in its
entirety and replacing it with the following: "Subordination Reduction Amount:
With respect to any Distribution Date, an amount equal to the lesser of (a) the
Excess Subordinated Amount and (b) the Net Monthly Excess Cash Flow."
(c) The fifth paragraph of the Preliminary Statement of the Pooling
and Servicing Agreement is hereby amended by deleting it in its entirety and
replacing it with the following: "The minimum denomination for each Class of
Certificates, other than the Class P, Class R and the Class X Certificates, will
be $25,000 with integral multiples of $1 in excess thereof. The minimum
denomination for the Class P and the Class X Certificates will each be a 1%
Percentage Interest in such Class. The Class R Certificate will represent a 100%
Percentage Interest in such Class."
(d) Article III of the Pooling and Servicing Agreement is hereby
amended by adding the following Section to the end of such Article: "Section
3.27 Optional Purchase of Delinquent Mortgage Loans. The Servicer may, at its
option, purchase a Mortgage Loan serviced by it that has become 90 or more days
delinquent or for which the Servicer has accepted a deed in lieu of foreclosure.
Prior to any purchase pursuant to this Section 3.27, the Servicer shall be
required to continue to make Advances pursuant to Section 4.01. The Servicer
shall not use any procedure in selecting Mortgage Loans to be repurchased which
is materially adverse to the interests of the Certificateholders. The Servicer
shall purchase such delinquent Mortgage Loan at a price equal to 100% of the
unpaid principal balance of such Mortgage Loan plus accrued and unpaid interest
on the related Mortgage Loan at the applicable Mortgage Rate, net of any
unreimbursed Advances owed to the Servicer (it being understood that upon such
purchase, such unreimbursed Advances shall be deemed to have been reimbursed in
full by the Servicer). Any such purchase of a Mortgage Loan pursuant to this
Section 3.27 shall be accomplished by deposit in the Collection Account of the
amount of such purchase price. Upon receipt of such purchase price, the Servicer
shall provide to the Trustee a Request for Release and the Trustee shall
promptly release to the Servicer, at the Servicer's expense, the Mortgage File
relating to the Mortgage Loan being repurchased. Notwithstanding anything to the
contrary contained herein, until the Class A-2 Certificates and any amounts
owing to the Class A-2 Certificate Insurer have been paid in full and the Class
A-2 Certificate Insurance Policy has been cancelled, the Servicer may not,
without the prior written consent of the Class A-2 Certificate Insurer, purchase
delinquent Mortgage Loans pursuant to this Section 3.27 if the aggregate amount
of Mortgage Loans so repurchased exceeds 2% of the aggregate Stated Principal
Balance of the Mortgage Loans as of the Cut-off Date."
(e) Section 4.02(a) is hereby amended by adding the following
sentence to the end of such section: "The effect of the foregoing provisions is
to distribute to the Class X Certificates all principal and interest received by
the Trust Fund on the Mortgage Loans that is not otherwise distributable to any
Class of LIBOR Certificates."
3. Ratification of Agreement. 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.
4. Counterparts. This Amendment may be executed by one or more of
the parties hereto on any number of separate counterparts and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
5. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN THE STATE OF NEW YORK AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HERETO AND THE
CERTIFICATEHOLDERS SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the day and year first above written.
XXXXXX XXXXXXX CAPITAL I INC.,
formerly known as XXXXXX XXXXXXX
XXXX XXXXXX CAPITAL I INC.
By: /s/Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: Executive Director
DEUTSCHE BANK NATIONAL TRUST COMPANY,
solely as Trustee and not in its
individual capacity
By: /s/Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Vice President
By: /s/Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
Title: Associate
XXXXXX LOAN SERVICING LP
By: /s/Xxxxxx XxXxxxx
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Name: Xxxxxx XxXxxxx
Title: Senior Vice President
NC CAPITAL CORPORATION
By: /s/Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
Title: President
[Signature Page to 2002-NC5 Amendment]
