EXHIBIT 4.1
SERVICER APPOINTMENT AND
ASSUMPTION AGREEMENT
THIS SERVICER APPOINTMENT AND
ASSUMPTION AGREEMENT (this “Agreement”), dated as of
October 1, 2005, is by and among Nomura Asset Acceptance
Corporation, as depositor (the “Depositor”), Nomura
Credit & Capital, Inc., as seller (the “Seller”),
GMAC Mortgage Corporation, as a servicer (“GMACM”) and
JPMorgan Chase Bank, N.A., as trustee (the
“Trustee”).
W I T N E S S E T H
WHEREAS, the Depositor, the Seller,
GMACM, Option One Mortgage Corporation (“OOMC”) and the
Trustee entered into the Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”), dated as of
February 1, 2004, relating to Nomura Asset Acceptance Corporation,
Mortgage Pass-Through Certificates, Series 2004-AP1;
WHEREAS, pursuant to Section 7.06 of
the Pooling and Servicing Agreement, the Seller has the right to
terminate OOMC as Servicer of the Mortgage Loans set forth on
Schedule 1 attached hereto (the “Option One 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 effectuate the replacement of OOMC as the Servicer
thereunder with respect to the Option One Mortgage
Loans;
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 GMACM be
appointed as the Servicer under the Pooling and Servicing Agreement
with respect to the Option One 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
OOMC of its termination as a Servicer under the Pooling and
Servicing Agreement with respect to the Option One Mortgage Loans
to be effective on October 1, 2005 (the “Termination
Date”).
(b)
In connection with the appointment of GMACM as
Servicer under the Pooling and Servicing Agreement, on the
Termination Date, the Seller shall cause GMACM to reimburse OOMC
for all outstanding Advances and Servicing Advances due
and owing to OOMC under the Pooling
and Servicing Agreement in connection with OOMC’s servicing
and administration of the Option One Mortgage Loans prior to the
Termination Date.
(c)
The Trustee, subject to the satisfaction of the
conditions precedent set forth in Section 5 of this Agreement,
consents to the appointment of GMACM as the Servicer under the
Pooling and Servicing Agreement and hereby designates GMACM as the
Servicer of the Option One Mortgage Loans from and after the
Termination Date.
(d)
GMACM 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 Option One 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, and (iv) assumes and agrees to be
bound by all terms and conditions of the Pooling and Servicing
Agreement.
(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 OOMC with respect to
the Option One Mortgage Loans shall be moved to and maintained by
GMACM at [___________]. 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 4. Representations and
Warranties of the Depositor and Seller.
(a) The following representations
and warranties are hereby made by the Depositor to the Seller,
GMACM and the Trustee as of the date hereof:
(i)
The Depositor is duly organized and
is validly existing as a corporation in good standing under the
laws of the State of Delaware and has full power and authority
(corporate and other) necessary to own or hold its properties and
to conduct its business as now conducted by it and to enter into
and perform its obligations under this Agreement.
(ii)
It has the full corporate power and
authority 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 bankruptcy, insolvency, moratorium, receivership and other
similar laws relating to creditors’ rights generally 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 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
