SERVICER RESIGNATION, APPOINTMENT, ASSUMPTION AND AMENDMENT AGREEMENT

 

                                                                       EXHIBIT 4

 

 

    SERVICER RESIGNATION, APPOINTMENT, ASSUMPTION AND AMENDMENT AGREEMENT

 

           MORGAN STANLEY DEAN WITTER CAPITAL I INC. TRUST 2002-NC1

 

      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 U.S. BANK

NATIONAL ASSOCIATION ("Trustee"):

 

                              W I T N E S S E T H:

 

      WHEREAS, the MORGAN STANLEY DEAN CAPITAL I INC. TRUST 2002-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 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 Litton 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 Litton 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 Litton 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 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, and 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 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 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 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 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, in each case, from and

after the Closing Date. For the avoidance of doubt, upon appointment hereunder,

Litton 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: 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(a)(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) 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 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,

            the 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