EXHIBIT 4.1
SERVICER APPOINTMENT, ASSUMPTION
AND
AMENDMENT
AGREEMENT
THIS SERVICER APPOINTMENT,
ASSUMPTION AND AMENDMENT AGREEMENT (this “Agreement”),
dated as of May 1, 2005, is by and among Wells Fargo Bank, National
Association (“Wells Fargo”), Nomura Asset Acceptance
Corporation, as depositor (the “Depositor”), Nomura
Credit & Capital, Inc., as seller (the “Seller”),
and JPMorgan Chase Bank, N.A. (formerly known as JPMorgan Chase
Bank), as trustee (the “Trustee”) and custodian (the
“Custodian”).
W I T N E S S E T H
WHEREAS, the Depositor, the Seller,
GMAC Mortgage Corporation (“GMACM”), the Trustee and
the Custodian entered into the Pooling and Servicing Agreement (the
“Pooling and Servicing Agreement”), dated as of
November 1, 2004, relating to Nomura Asset Acceptance Corporation,
Mortgage Pass-Through Certificates, Series 2004-AR3;
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 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 Servicer thereunder;
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 successor
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
to be effective on May 1, 2005 (the “Termination
Date”).
(b) In
connection with the appointment of Wells Fargo as successor
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
parties hereto, subject to the satisfaction of the conditions
precedent set forth in Section 5 of this Agreement, consent to the
appointment of Wells Fargo as successor Servicer under the Pooling
and Servicing Agreement and hereby designate Wells Fargo as
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 successor Servicer set forth in Section 8.02 of
the Pooling and Servicing Agreement, (ii) accepts the appointment
as 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 the 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 shall be moved to and maintained by Wells
Fargo 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 3. Amendments to Pooling and
Servicing Agreement.
(a) The
following representations and warranties are hereby made by Wells
Fargo to the Seller, the Depositor 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 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 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 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 order is required, it has
obtained the same.
(vii) Wells
Fargo will accurately and fully report its borrower credit files to
each of the c
