SERVICER RESIGNATION, APPOINTMENT, ASSUMPTION AND AMENDMENT AGREEMENT

 

      SERVICER RESIGNATION, APPOINTMENT, ASSUMPTION AND AMENDMENT AGREEMENT

 

            MORGAN STANLEY DEAN WITTER 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

MORGAN STANLEY DEAN WITTER CAPITAL I INC. ("Depositor"), THE PROVIDENT BANK

("Provident" or "Servicer"), NC CAPITAL CORPORATION ("Responsible Party"),

LITTON LOAN SERVICING LP ("Litton" or "Successor Servicer"), and DEUTSCHE BANK

NATIONAL TRUST COMPANY, as trustee ("Trustee"):

 

 

                              W I T N E S S E T H:

 

      WHEREAS, the MORGAN STANLEY DEAN WITTER 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 Litton 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 Litton 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 Litton 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 Litton, 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 Litton 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, Litton 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 Litton, 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 Litton 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

Litton, as applicable, served or is serving as Servicer.

 

     (c) Litton 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: Litton 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, Litton 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 unreimbursed P&I

            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