SERVICER APPOINTMENT, ASSUMPTION
AND
AMENDMENT
AGREEMENT
THIS SERVICER APPOINTMENT,
ASSUMPTION AND AMENDMENT AGREEMENT (this “Agreement”),
dated as of November 30, 2005, is by and among Nomura Asset
Acceptance Corporation, as depositor (the “Depositor”),
Nomura Credit & Capital, Inc., as seller (the
“Seller”), Wells Fargo Bank, National Association, as
servicer (“Wells Fargo”), Wells Fargo Bank, National
Association, as master servicer (the “Master Servicer”)
and securities administrator (the “Securities
Administrator”), and HSBC Bank USA, National Association, as
trustee (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Depositor, the Seller,
the Master Servicer, the Securities Administrator, GMAC Mortgage
Corporation (“GMACM”), as Servicer, and the Trustee
entered into the Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”), dated as of July 1,
2005, relating to Nomura Asset Acceptance Corporation, Mortgage
Pass-Through Certificates, Series 2005-AR4;
WHEREAS, pursuant to Section 7.06 of
the Pooling and Servicing Agreement, the Seller has the right to
terminate GMACM as Servicer of the Mortgage Loans set forth on
Schedule 1 attached hereto (the “Mortgage Loans”)
without cause upon the satisfaction of certain conditions set forth
in the Pooling and Servicing Agreement;
WHEREAS, the Depositor and the
Seller desire to amend certain provisions of the Pooling and
Servicing Agreement to better effectuate the replacement of GMACM
as the Servicer thereunder with respect to the Mortgage
Loans;
WHEREAS, Section 11.01 of the
Pooling and Servicing Agreement provides that the Pooling and
Servicing Agreement may be amended from time to time by the parties
thereto, without the consent of any of the Certificateholders to
cure any ambiguity, to correct or supplement any provisions herein,
to change the manner in which the Distribution Account maintained
by the Securities Administrator or the Custodial Account maintained
by the Servicer is maintained or to make such other provisions with
respect to matters or questions arising under this Agreement as
shall not be inconsistent with any other provisions herein if such
action shall not, as evidenced by an Opinion of Counsel, adversely
affect in any material respect the interests of any
Certificateholder; provided that any such amendment shall be deemed
not to adversely affect in any material respect the interests of
the Certificateholders and no such Opinion of Counsel shall be
required if the Person requesting such amendment obtains a letter
from each Rating Agency stating that such amendment would not
result in the downgrading or withdrawal of the respective ratings
then assigned to the Certificates;
NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and of the mutual covenants herein contained,
the parties hereto agree as follows:
SECTION 1. Defined Terms.
For purposes of this Agreement,
unless the context clearly requires otherwise, all capitalized
terms which are used but not otherwise defined herein shall have
the respective meanings assigned to such terms in the Pooling and
Servicing Agreement.
SECTION 2. Appointment of
Servicer.
(a)
The Seller hereby proposes that
Wells Fargo be appointed as the Servicer under the Pooling and
Servicing Agreement with respect to the Mortgage Loans and, subject
to the satisfaction of the conditions precedent set forth in
Section 5 of this Agreement, the Seller will provide written
notification to GMACM of its termination as Servicer under the
Pooling and Servicing Agreement with respect to the Mortgage Loans
to be effective as of the close of business on November 30, 2005
(the “Termination Date”).
(b)
In connection with the appointment
of Wells Fargo as the Servicer under the Pooling and Servicing
Agreement, on the Termination Date, the Seller shall cause Wells
Fargo to reimburse GMACM for all outstanding Advances and Servicing
Advances due and owing to GMACM under the Pooling and Servicing
Agreement in connection with GMACM’s servicing and
administration of the Mortgage Loans prior to the Termination
Date.
(c)
The Master Servicer, subject to the
satisfaction of the conditions precedent set forth in Section 5 of
this Agreement, consents to the appointment of Wells Fargo as the
Servicer under the Pooling and Servicing Agreement and hereby
designates Wells Fargo as the Servicer of the Mortgage Loans from
and after the Termination Date.
(d)
Wells Fargo hereby (i) represents
and warrants that it meets all requirements of a servicer set forth
in Section 8.02 of the Pooling and Servicing Agreement, (ii)
accepts the appointment as the Servicer of the Mortgage Loans under
the Pooling and Servicing Agreement, (iii) assumes and agrees to
discharge the due and punctual performance and observance of each
covenant and condition to be performed and observed by a servicer
under the Pooling and Servicing Agreement, as amended hereby, and
(iv) assumes and agrees to be bound by all terms and conditions of
the Pooling and Servicing Agreement, as amended hereby.
(e)
On the Termination Date, each
account that, pursuant to the terms of the Pooling and Servicing
Agreement, is required to be established and maintained by GMACM
with respect to the Mortgage Loans shall be moved to and maintained
by Wells Fargo at Wells Fargo. This Agreement shall be deemed to
satisfy any and all requirements in the Pooling and Servicing
Agreement for notice of change in any such account.
SECTION 3. Amendments to Pooling and
Servicing Agreement.
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(a)
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The following definition is added to
Article 1:
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“Wells Fargo: Wells Fargo
Bank, National Association acting in its capacity as the
Servicer.”
(b)
The definition of Servicer in
Article 1 is amended by replacing “GMAC Mortgage
Corporation” with “Wells Fargo Bank, National
Association”.
(c)
The following representations and
warranties are hereby made by Wells Fargo to the Seller, the
Depositor, the Master Servicer, the Securities Administrator and
the Trustee as of the date hereof and such representations and
warranties shall replace the representations and warranties of
GMACM set forth in Section 2.03(a) of the Pooling and Servicing
Agreement:
(i)
It is duly organized and is validly
existing and in good standing under the laws of the United States
and is duly authorized and qualified to transact any and all
business contemplated by this Agreement to be conducted by it in
any state in which a Mortgaged Property is located or is otherwise
not required under applicable law to effect such qualification and,
in any event, is in compliance with the doing business laws of any
such state, to the extent necessary to ensure its ability to
service the Mortgage Loans in accordance with the terms of this
Agreement and to perform any of its other obligations under this
Agreement in accordance with the terms hereof.
(ii)
It has the full corporate power and
authority to service each Wells Fargo Mortgage Loan, and to
execute, deliver and perform, and to enter into and consummate the
transactions contemplated by this Agreement and has duly authorized
by all necessary corporate action on its part the execution,
delivery and performance of this Agreement; and this Agreement,
assuming the due authorization, execution and delivery hereof by
the other parties hereto, constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms,
except that (a) the enforceability hereof may be limited by the
effect of insolvency, liquidation, conservatorship and other
similar laws administered by the Federal Deposit Insurance
Corporation affecting the enforcement of contract obligations of
insured banks and (b) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought and further subject to
public policy with respect to indemnity and contribution under
applicable securities law.
(iii)
The execution and delivery of this Agreement by
it, the servicing of the Mortgage Loans by it under this Agreement,
the consummation of any other of the transactions contemplated by
this Agreement, and the fulfillment of or compliance with the terms
hereof are in its ordinary course of business and will not (A)
result in a material breach of any term or provision of its charter
or by-laws or (B) materially conflict with, result in a material
breach, violation or acceleration of, or result in a material
default under, the terms of any other material agreement or
instrument to which it is a party or by
which it may be bound, or (C)
constitute a material violation of any statute, order or regulation
applicable to it of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it; and it is
not in breach or violation of any material indenture or other
material agreement or instrument, or in violation of any statute,
order or regulation of any court, regulatory body, administrative
agency or governmental body having jurisdiction over it which
breach or violation may materially impair its ability to perform or
meet any of its obligations under this Agreement.
(iv)
It is an approved servicer of conventional
mortgage loans for Fannie Mae or Freddie Mac and is a mortgagee
approved by the Secretary of Housing and Urban Development pursuant
to sections 203 and 211 of the National Housing Act.
(v)
No litigation is pending or, to the
best of its knowledge, threatened in writing, against it that would
materially and adversely affect the execution, delivery or
enforceability of this Agreement or its ability to service the
Mortgage Loans or to perform any of its other obligations under
this Agreement in accordance with the terms hereof.
(vi)
No consent, approval, authorization or order of
any court or governmental agency or body is required for its
execution, delivery and performance of, or compliance with, this
Agreement or the consummation of the transactions contemplated
hereby, or if any such consent, approval, authorization
or
