SERVICER RESIGNATION, APPOINTMENT, ASSUMPTION AND AMENDMENT AGREEMENT
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC. TRUST 2002-NC2
THIS SERVICER RESIGNATION, APPOINTMENT, ASSUMPTION AND AMENDMENT
AGREEMENT, dated as of December 1, 2004 (the "Agreement"), is by and among
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I INC. ("Depositor"), THE PROVIDENT BANK
("Provident" or "Servicer"), NC CAPITAL CORPORATION ("Responsible Party"),
XXXXXX LOAN SERVICING LP ("Xxxxxx," or "Successor Servicer"), and U.S. BANK
NATIONAL ASSOCIATION ("Trustee"):
W I T N E S S E T H:
WHEREAS, the XXXXXX XXXXXXX XXXX CAPITAL I INC. TRUST 2002 - NC2 (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 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 Xxxxxx appointed as a successor Servicer in
accordance with provisions of that Section;
WHEREAS, the Trustee and the Depositor desire to accept the resignation of
Provident as Servicer, and acknowledge the succession of Xxxxxx to Provident as
successor 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 Xxxxxx be appointed as a 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 Xxxxxx, 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 Xxxxxx as Servicer, and find such appointment to be acceptable and hereby
acknowledge that pursuant to Sections 6.04 and 10.01 of the Servicing Agreement,
Xxxxxx has been designated as Servicer under the Transaction Documents for all
purposes from and after the Closing Date. Neither the Trustee nor the 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 Xxxxxx, 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 Xxxxxx shall: (A) reasonably cooperate
with the Depositor and the 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 Xxxxxx, as applicable, served or is serving as Servicer.
(c) Xxxxxx 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, in each case, from and
after the Closing Date. For the avoidance of doubt, upon appointment hereunder,
Xxxxxx shall assume the responsibilities, obligations and duties of the Servicer
under the Servicing Agreement and other Transaction Documents.
(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 the 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 the requirements of Section 3.10(b) of the Servicing Agreement.
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 definitions:
Successor Servicer: Xxxxxx Loan Servicing LP, as successor servicer
pursuant to that certain Servicer Resignation, Appointment, Assumption and
Amendment Agreement dated as of November ___, 2004, among The Provident
Bank, Xxxxxx Loan Servicing LP, the Depositor, the Responsible Party, and
the Trustee.
(b) Subsection 3.02 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) and (e)
below, under which (1) the Servicer assigns or pledges its rights
under this Agreement to be reimbursed for any or all P&I 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) 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 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(c) hereof, have
the right to make withdrawals from the Collection Account pursuant
to Section 3.11 hereof to reimburse previously xxxxxxxxxxxx X&X
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,
Servicer, and the Servicer's Assignee. 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(e) 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 to the Trustee
delivered in the manner set forth in Section 10.05 hereof. Upon
receipt of a written notice of termination that satisfies the
requirements of this Section 10.07(c), the Servicer shall no longer
be entitled to withdraw Advance Reimbursement Amounts from the
Collection Account and the Servicer's Assignee shall thereafter have
the right to withdraw from the Collection Account all Advance
Reimbursement Amounts when and to the extent such amounts are
payable to the Servicer pursuant to the terms of Section 3.11
hereof. Notwithstanding the foregoing, and for the avoidance of
doubt, (i) the Servicer and/or the Servicer's Assignee shall only be
entitled to reimbursement of Advance Reimbursement Amounts hereunder
pursuant to Section 3.11 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, and (ii) 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. An
Advance Facility may be terminated by the joint written direction of
the Servicer and the related Advance Financing Person. Written
notice of such termination shall be delivered to the Trustee in the
manner set forth in Section 10.05 hereof. The Trustee shall have no
duty or liability with respect to the calculation of any Advance
Reimbursement Amount and shall be entitled to rely without
independent investigation on the Advance Facility Notice and on such
Servicer's report of the amount of Advance Reimbursement Amounts and
Servicing Advance Reimbursement Amounts that were included in the
remittance from such Servicer to the Trustee pursuant to Section
4.03(d). Such Servicer shall maintain and provide to any successor
Servicer a detailed accounting on a loan-by-loan basis as to amounts
advanced by, pledged or assigned to, and reimbursed to any 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.
(d) 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 Sub-Servicer.
(e) 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.
(f) 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 such Servicer or any predecessor Servicer. In
making its determination that any P&I 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.
(g) The Trustee shall not, as a result of the existence of any
Advance Facility, have any additional responsibility, including
without limitation, to track or monitor Advance Reimbursement
Amounts or any Advance Facility, and, except as otherwise expressly
provided herein, is not and shall not be obligated to make any
payment with respect to any Advance Reimbursement Amount. The
Servicer hereby indemnifies the Trustee, the Trust Fund and any
successor Servicer, as applicable, from and against any claims,
losses, liabilities or damages resulting from any claim by the
related Advancing Person, 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 Trustee or the
successor Servicer, or failure by the successor Servicer or the
Trustee to remit funds as required by this Agreement or the
commission of an act or omission to act by the successor Servicer or
the Trustee, and the passage of any applicable cure or grace period,
such that a Servicer Event of Termination under this Agreement
occurs or such entity is subject to termination for cause under this
Agreement.
(h) 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
Responsible Party, the Depositor, and the Servicer, without the
consent of any Certificateholder, notwithstanding anything to the
contrary in this Agreement, upon receipt by the Trustee of an
Opinion of Counsel that such amendment has no material adverse
effect on the Certificateholders or written confirmation from the
Rating Agencies that such amendment will not adversely affect the
ratings on the Certificates.
(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
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 Xxxxxx 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 Xxxxxx. (a) Xxxxxx, as successor
Servicer, hereby represents and warrants as of the Closing Date as follows:
(i) Xxxxxx 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. It 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) Xxxxxx 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,
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 its 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) Xxxxxx 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,
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
Xxxxxx will not violate any provision of any existing law or regulation or
any order or decree of any court applicable to Xxxxxx or any of Litton's
properties or any provision of its organizational documents, or constitute
a material breach of any mortgage, indenture, contract or the agreement to
which it is a party or by which it may be bound;
(v) Xxxxxx is an approved servicer for Xxxxxx Xxx and an approved
servicer for Xxxxxxx Mac in good standing;
(vi) No litigation is pending against Xxxxxx that would materially
and adversely affect the execution, delivery or enforceability of this
Agreement or the ability of Xxxxxx 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 Xxxxxx can service the
Mortgage Loans in accordance with the terms of the Transaction Documents;
(viii) The execution and delivery of this Agreement by Xxxxxx, the
servicing of the Mortgage Loans under the Servicing Agreement, the
consummation by Xxxxxx of any other of the transactions herein
contemplated, and the fulfillment of or compliance with the terms hereof
are in the ordinary course of business of Xxxxxx and will not (A) result
in a breach of any term or provision of the organizational documents of
Xxxxxx or (B) conflict with, result in a breach, violation or acceleration
of, or result in a default under, the terms of any other material
agreement or instrument to which Xxxxxx is a party or by which it may be
bound, or any statute, order or regulation applicable to Xxxxxx of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over Xxxxxx and Xxxxxx is not a party to, bound by, or in
breach or violation of any indenture or other agreement or instrument, or
subject to or in violation of any statute, order or regulation of any
court, regulatory body, administrative agency or governmental body having
jurisdiction over it, which materially and adversely affects or, to
Litton's knowledge, would in the future materially and adversely affect,
(x) the ability of Xxxxxx to perform its obligations under the Servicing
Agreement or (y) the business, operations, financial condition, properties
or assets of Xxxxxx taken as a whole; and
(ix) Xxxxxx has a net worth of at least $30,000,000.
(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, the Person discovering such breach shall give prompt
written notice to the Depositor and the Trustee. Within 30 days of its discovery
or its receipt of notice of breach or, with the prior written consent of a
Responsible Officer of the Trustee, such longer period specified in such
consent, Xxxxxx shall cure such breach in all material respects.
(c) From and after the appointment of Xxxxxx as Servicer under Transaction
Documents, the representations and warranties of Xxxxxx 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) of the Servicing Agreement
and Schedule II thereof.
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. It 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 its 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
the 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, the Person discovering such breach shall give prompt
written notice to the Depositor and the Trustee. Within 30 days of its discovery
or its receipt of notice of breach or, with the prior written consent of a
Responsible Officer of the 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, the Servicer and the 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 the Depositor, the Trustee, the Servicer, and the 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;
(iii) an Officer's Certificate of Provident (A) to the effect that
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 Xxxxxx (A) to the effect that 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 the 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 Xxxxxxx and Xxxxxx LLP, special counsel to
Provident, addressed to the Trustee, the Depositor, the Responsible Party
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 Xxxxxxx and Xxxxxx LLP, special counsel to Provident,
addressed to the Trustee, the Depositor, the Responsible Party 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 the Trustees 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 Xxxxxxx, Muething & Xxxxxxx, P.L.L., special Ohio
counsel to Provident, addressed to the Trustee, the Depositor, the
Responsible Party 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 Xxxxxxxxxxx & Xxxxxxxx, LLP, special counsel to
Xxxxxx, addressed to the Trustee, the Depositor, the Responsible Party and
the Rating Agencies, to be dated as of the Closing Date, as to due
execution and authority of Xxxxxx for this Agreement, and that this
Agreement constitutes a valid, binding and enforceable agreement of Xxxxxx
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 Xxxxxx 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 Xxxxxx.
(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 Section 10.01 thereof, for delivery of
written notice to the Rating Agencies of the Agreement or its contents) ;
and
(iv) The Closing Escrow Agent shall have received certifications from
each of Provident, as Servicer, and Xxxxxx, 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 the 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 and such information shall supersede the address
information set forth in Section 10.05 of the Servicing Agreement.
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 Xxxxxxx and Xxxxxx 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 Xxxxxx 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.
"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 superseded 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
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.
[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.
XXXXXX XXXXXXX XXXX XXXXXX CAPITAL I
INC., as a Depositor
By ____________________________________
Name: Xxxxxx Xxxxxxx
Title: Executive Director
THE PROVIDENT BANK, as a Servicer
By ___________________________________
Name:__________________________________
Title: ________________________________
NC CAPITAL CORPORATION, as a
Responsible Party
By ___________________________________
Name:__________________________________
Title: ________________________________
XXXXXX LOAN SERVICING LP, as Successor
Servicer
By: ___________________________________
Name:__________________________________
Title:_________________________________
U.S. BANK NATIONAL ASSOCIATION, solely as
Trustee and not in its individual
capacity
By _____________________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
XXXXXXX AND XXXXXX LLP, as
Closing Escrow Agent
By
------------------------
Name: Xxxx X. Xxxxxx
Title: Partner
SCHEDULE 1.1.A
POOLING AND SERVICING AGREEMENT
AND OTHER TRANSACTION DOCUMENTS
Pooling and Servicing Agreement, dated as of April 1, 2002, among Xxxxxx
Xxxxxxx Xxxx Xxxxxx 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 U.S. Bank National
Association, a national banking association, as trustee.
SCHEDULE 6
ADDRESSES FOR NOTICES
If to Depositor: Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Xxxxxx
Facsimile Number: 000-000-0000
Telephone Number: 000-000-0000
xxxxxxxx.xxxxxx@xxxxxxxxxxxxx.xxx
If to Provident: X. Xxxxxxx Case, Jr.
Executive Vice President; Loan Administration
National City Mortgage Co.
0000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Facsimile Number: 000-000-0000
If to Xxxxxx: Xxxxxx XxXxxxx
Xxxxxx Loan Servicing LP
0000 Xxxx Xxxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Facsimile Number: 000-000-0000
If to the Responsible NC Capital Corporation
Party: 00000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Telephone Number: 000-000-0000
xxxxxx@xxxx.xxx
If to the Trustee: U.S. Bank National Association
Mail Code EP-MN-WS3D
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Structured Finance/MSDW-2002-NC2
Facsimile Number: 000-000-0000
Telephone Number: 000-000-0000
If to the Closing Escrow Xxxxxxx X. Xxxxx
Agent: Xxxxxxx and Xxxxxx LLP
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Facsimile Number: 000-000-0000
