EXHIBIT 4.1
SERVICER APPOINTMENT, ASSUMPTION
AND
AMENDMENT
AGREEMENT
THIS SERVICER APPOINTMENT,
ASSUMPTION AND AMENDMENT 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”), Wells Fargo Bank, National Association, as a
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 and the Trustee
entered into the Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”), dated as of August
1, 2005, relating to Nomura Asset Acceptance Corporation, Mortgage
Pass-Through Certificates, Series 2005-AP3;
WHEREAS, pursuant to Section 7.06 of
the Pooling and Servicing Agreement, the Seller has the right to
terminate GMAC Mortgage Corporation (“GMACM”) as
Servicer of the Mortgage Loans set forth on Schedule 1 attached
hereto (the “Transferred 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 Transferred 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 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 Trustee 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 a Servicer under the Pooling and Servicing Agreement
with respect to the Transferred 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 Transferred Mortgage Loans
to be effective on October 1, 2005 (the “Termination
Date”).
(b)
In connection with the appointment of Wells
Fargo as a 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
Transferred 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 a Servicer
under the Pooling and Servicing Agreement and hereby designates
Wells Fargo as the Servicer of the Transferred 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 Transferred 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 Transferred 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: Shall mean 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 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 Transferred 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
Transferred 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
