EXHIBIT 4
SERVICER RESIGNATION, APPOINTMENT, ASSUMPTION AND AMENDMENT AGREEMENT
SECURITIZED ASSET BACKED RECEIVABLES LLC TRUST 2004-NC1
THIS SERVICER RESIGNATION, ASSUMPTION AND AMENDMENT AGREEMENT, dated as of
December 1, 2004 (the "Agreement"), is by and among THE PROVIDENT BANK
("Provident" or the "Servicer"), ▇▇▇▇▇▇ LOAN SERVICING LP ("▇▇▇▇▇▇," or the
"Successor Servicer"), DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee
("Trustee"), SECURITIZED ASSET BACKED RECEIVABLES LLC (the "Depositor") and NC
CAPITAL CORPORATION (the "Responsible Party"):
W I T N E S S E T H:
WHEREAS, Securitized Asset Backed Receivables LLC Trust 2004-NC1 (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 the Depositor, the Servicer, the Responsible Party and
Trustee;
WHEREAS, Provident is 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 replacement Servicer in
accordance with the provisions of that Section;
WHEREAS, the Trustee and the Depositor desire to accept the resignation of
Provident as Servicer, and acknowledge the succession of ▇▇▇▇▇▇ 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
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, find the appointment of ▇▇▇▇▇▇ as Servicer 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. In accordance with the provisions of
Section 7.02 of the Servicing Agreement, 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 and 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 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 the ▇▇▇▇▇▇, 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 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 any and all requirements contained in any Transaction Document for
notice of change in any such account.
2. Amendments to Servicing Agreement and Transaction Documents. Effective
as of the Closing Date, the Servicing Agreement is hereby amended as follows:
(a) The first four paragraphs of Section 10.10 are deleted in their
entirety and replaced with the following:
"Section 10.10 Assignment; Sales; Advance Facilities. (a) 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 the Depositor; provided, however, 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 10.10(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 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 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 Advances and/or Servicing Advances, (A) the Servicer (i) shall remain
obligated pursuant to this Agreement to make 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 10.10(c)
hereof, have the right to make withdrawals from the Collection Account
pursuant to Section 3.11 hereof to reimburse previously unreimbursed
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 10.10
and agree to be bound by the provisions of this Section 10.10, 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, the Servicer, and the Servicer's
Assignee. Advance Reimbursement Amounts (i) shall consist solely of
amounts in respect of 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 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 10.10(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 10.10(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 3.12 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. None of the
Depositor or 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, nor, as a
result of the existence of any Advance Facility, shall the Depositor or
the Trustee 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 related Advance Financing 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 Depositor, the Trustee or any successor Servicer, as the case
may be, or failure by the successor Servicer to remit funds as required by
this Agreement or the commission of an 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 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 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 an Advance and/or
Servicing Advance shall have been made and be outstanding shall be
allocated on a "first-in, first out" basis. In the event the Servicer's
Assignee shall have received some or all of an Advance Reimbursement
Amount related to 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 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 any certification of a Servicing Officer of the
Servicer made pursuant to Section 4.01(d), 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 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 Advance or Servicing Advance shall have been
made by the Servicer or any predecessor Servicer.
(g) The parties hereto hereby acknowledge and agree that: (i) the 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 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 any Advances and/or Servicing Advances financed by the Advance
Financing Person; (ii) the Servicer will be responsible for remitting to
the Advance Financing Person the applicable amounts collected by it as
reimbursement for Advances and/or Servicing Advances funded by the Advance
Financing Person, subject to the provisions of this Agreement; and (iii)
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.
(h) Any amendment to this Section 10.10 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 10.10, 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 does not adversely affect, in
any material respect, the interests of any Certificateholder or written
confirmation from the Rating Agencies that such amendment will not
adversely affect the ratings on the Certificates."
(b) The representations and warranties of the Successor Servicer as
set forth in Section 3 below shall constitute, for all purposes, the
representations and warranties of the Servicer contained in Section 2.03(a) of
and Schedule II to the Servicing Agreement.
(c) From and after the Closing Date, 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) ▇▇▇▇▇▇ hereby represents
and warrants as of the Closing Date as follows:
(i) ▇▇▇▇▇▇ is a limited partnership formed under the laws of Delaware, and
each 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) It has the organizational power and authority to make, execute, deliver
and perform this Agreement and to perform the duties of 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) It 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
or the performance of its duties as 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 Closing Date;
(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 the 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; and
(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.
(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 other parties.
(c) From and after the appointment of ▇▇▇▇▇▇ as Servicer under the
Transaction Documents, the representations and warranties of ▇▇▇▇▇▇ set forth in
Section 3(a) above shall constitute, for all purposes, the representations and
warranties of the Servicer as otherwise stated in Section 2.03(a) in the
Servicing Agreement and Schedule II thereto.
4. Representations and Warranties of Provident. (a) Provident hereby
represents and warrants as of the Closing Date as follows:
(i) It 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) It 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) It 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 Closing Date; and
(iv) The execution, delivery and performance of this Agreement by it will
not violate any provision of any existing law or regulation or any order or
decree of any court applicable to it or any of its properties or any provision
of its organizational documents, or constitute a material breach of any
mortgage, indenture, contract or other 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 other parties. 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 Trustee, the Servicer, and the Successor Servicer:
(i) a fully executed copy of this Agreement;
(ii) a Confirmation Letter from each of Standard & Poor's, ▇▇▇▇▇'▇ and Fitch
or a letter confirming that each of Standard and Poor's, ▇▇▇▇▇'▇ and Fitch 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 ▇▇▇▇▇▇ (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) an opinion of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ 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 any REMIC related prohibited transactions tax;
(vii) opinions of ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ 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 and not prohibited by the Servicing Agreement, (B) the
requirements of the Servicing Agreement for the 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 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to ▇▇▇▇▇▇,
addressed to Provident, 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 ▇▇▇▇▇▇ 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 Section 10.01 and 10.05 thereof, for delivery of written notice to
the Rating Agencies of the Agreement or its contents).
(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)
above, 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) above 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.
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
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
Bank as Servicer and appointment of ▇▇▇▇▇▇ as successor Servicer, nor (b)
the amendments effectuated by the Agreement, will adversely affect the
then current ratings on the Class A Certificates.
"Pre-Closing Date" shall mean November 10, 2004, or such later date
designated by Provident that is a Business Day.
"Transaction Document" means each document 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
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.
THE PROVIDENT BANK, as Servicer
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
SECURITIZED ASSET BACKED RECEIVABLES LLC,
as Depositor
By
Name:
-------------------------------
Title:
------------------------------
NC CAPITAL CORPORATION, as Responsible
Party
By
Name:
-------------------------------
Title:
------------------------------
CONSENTED TO:
▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇ LLP,
as Closing Escrow Agent
By
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Partner
SCHEDULE 1.1.A
POOLING AND SERVICING AGREEMENT
AND OTHER TRANSACTION DOCUMENTS
(1) Pooling and Servicing Agreement, dated as of April 1, 2004, among
Securitized Asset Backed Receivables LLC, a Delaware limited liability company,
as depositor (the "Depositor"), The Provident Bank, an Ohio banking corporation,
as servicer (the "Servicer"), NC Capital Corporation, a California corporation,
as responsible party (the "Responsible Party"), and Deutsche Bank National Trust
Company, a national banking association, as trustee (the "Trustee").
SCHEDULE 6
ADDRESSES FOR NOTICES
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 Trustee: Deutsche Bank National Trust Company
▇▇▇▇ ▇▇▇▇ ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Trust Administration-BC04C1
Telephone Number: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Depositor: Securitized Asset Backed Receivables LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Responsible
Party: NC Capital Corporation
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
Facsimile Number: [__________]
If to the Closing
Escrow Agent: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile Number: (▇▇▇) ▇▇▇-▇▇▇▇