SERVICER APPOINTMENT, ASSUMPTION AND AMENDMENT AGREEMENT
EXHIBIT
4.1
SERVICER
APPOINTMENT, ASSUMPTION AND
AMENDMENT
AGREEMENT
THIS
SERVICER APPOINTMENT, ASSUMPTION AND AMENDMENT AGREEMENT (this “Agreement”),
dated as of January 2, 2007, is by and among Nomura Asset Acceptance
Corporation, as depositor (the “Depositor”), Nomura Credit & Capital, Inc.,
as seller (in such capacity, the “Sponsor”), Xxxxx Fargo Bank, National
Association, as a servicer (“Xxxxx Fargo”), GMAC Mortgage, LLC (“GMACM”), Xxxxx
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 Sponsor, the Master Servicer, the Securities Administrator,
GMAC Mortgage Corporation, predecessor in interest to GMACM, and the Trustee
entered into the Pooling and Servicing Agreement (the “Pooling and Servicing
Agreement”), dated as of September 1, 2006, relating to Nomura Asset Acceptance
Corporation, Mortgage Pass-Through Certificates, Series 2006-AR3;
WHEREAS,
pursuant to Section 7.06 of the Pooling and Servicing Agreement, the Sponsor
has
the right to terminate GMACM as Servicer of the Mortgage Loans set forth
on
Schedule 1 attached hereto (the “Xxxxx Fargo Mortgage Loans”) without cause upon
the satisfaction of certain conditions set forth in the Pooling and Servicing
Agreement;
WHEREAS,
the Depositor and the Sponsor 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 Xxxxx Fargo 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 therein, to change the manner in which
the
Distribution Account maintained by the Securities Administrator or the Custodial
Account maintained by the Servicers are maintained or to make such other
provisions with respect to matters or questions arising under the Pooling
and
Servicing Agreement as shall not be inconsistent with any other provisions
therein if such action shall not, as evidenced by an Opinion of Counsel,
adversely affect in any material respect the interests of any Certificateholder
(or the Swap Provider unless the Swap Provider shall have consented to the
amendment, which consent shall not be unreasonably withheld); 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; provided
further 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 nor any letter from the Rating Agencies stating that such amendment
would not result in the downgrading or withdrawal of the respective ratings
then
assigned to the Certificates shall be required if such amendment is to effect
a
transfer of servicing pursuant to Section 7.06(a) of the Pooling and Servicing
Agreement to a Successor Servicer satisfying the Minimum Servicing
Requirements;
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
Sponsor hereby proposes that Xxxxx Fargo be appointed as the Servicer under
the
Pooling and Servicing Agreement with respect to the Xxxxx Fargo Mortgage
Loans
and, subject to the satisfaction of the conditions precedent set forth in
Section 5 of this Agreement, the Sponsor will provide written notification
to
GMACM of its termination as the servicer under the Pooling and Servicing
Agreement with respect to the Xxxxx Fargo Mortgage Loans to be effective
as of
the close of business on January 2, 2007 (the “Termination Date”).
(b) In
connection with the appointment of Xxxxx Fargo as a Servicer under the Pooling
and Servicing Agreement, on the Termination Date, the Sponsor shall cause
Xxxxx
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 Xxxxx Fargo 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 Xxxxx
Fargo
as a Servicer under the Pooling and Servicing Agreement and hereby designates
Xxxxx Fargo as the Servicer of the Xxxxx Fargo Mortgage Loans from and after
the
Termination Date.
(d) Xxxxx
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 Xxxxx Fargo 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, as of the date hereof, 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 Xxxxx Fargo Mortgage Loans shall be moved to and maintained
by
Xxxxx Fargo at Xxxxx 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.
(a)
Article
1
of the Pooling and Servicing Agreement is hereby amended by adding the following
definitions in alphabetical order:
Xxxxx
Fargo:
Xxxxx
Fargo Bank, National Association, and any successor appointed under this
Agreement in connection with the servicing and administration of the Xxxxx
Fargo
Mortgage Loans.
Xxxxx
Fargo Mortgage Loans:
Those
Mortgage Loans serviced by Xxxxx Fargo pursuant to the terms of this Agreement
as specified on the Mortgage Loan Schedule.
(b)
Article
1
of the Pooling and Servicing Agreement is hereby further amended by deleting
the
definition of Servicer and replacing it with the following:
Servicer:
GMACM,
Wachovia or Xxxxx Fargo or any successor thereto approvied hereunder or under
the Servicing Agreement in connection with the servicing and administration
of
the related Mortgage Loans.
(c)
The
following representations and warranties are hereby made by Xxxxx Fargo to
the
Sponsor, 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 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 Xxxxxx Xxx or Xxxxxxx
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) Xxxxx
Fargo has accurately and fully reported, and will continue to accurately
and
fully report, its borrower credit files to each of the credit repositories
in a
timely manner materially in accordance with the Fair Credit Reporting Act
and
its implementing legislation.
(viii) Xxxxx
Fargo is a member of MERS in good standing, and will comply in all material
respects with the rules and procedures of MERS in connection with the servicing
of the Mortgage Loans that are registered with MERS.
(ix) Xxxxx
Fargo will not waive any Prepayment Charge with respect to a Mortgage Loan
unless it is waived in accordance with the standard set forth in Section
3.01.
SECTION
4. Representations and Warranties of the Depositor and Sponsor
(a) The
following representations and warranties are hereby made by the Depositor
to the
Sponsor, Xxxxx Fargo, the Master Servicer, the Securities Administrator 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) The
Depositor 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
of the
Depositor, enforceable against the Depositor in accordance with its terms,
subject, as to enforceability, to (a) 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 the Depositor, the consummation
of
any of the transactions contemplated by this Agreement, and the fulfillment
of
or compliance with the terms hereof are in the ordinary course of business
of
the Depositor and will not (A) result in a material breach of any term or
provision of the charter or by-laws of the Depositor 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 the Depositor; and the Depositor 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) No
litigation is pending or, to the best of its knowledge, threatened, against
the
Depositor that would materially and adversely affect the execution, delivery
or
enforceability of this Agreement or the ability of the Depositor to perform
any
of its obligations under this Agreement in accordance with the terms
hereof.
(v) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for its execution, delivery and performance by the Depositor
of, or compliance by the Depositor 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.
(b)
The
following representations and warranties are hereby made by the Sponsor to
the
Depositor, Xxxxx Fargo, the Master Servicer, the Securities Administrator
and
the Trustee as of the date hereof:
(i) The
Sponsor is duly organized, validly existing and in good standing under the
laws
of the State of Delaware and is duly authorized and qualified to transact
any
and all business contemplated by this Agreement to be conducted by the Sponsor
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 enforce each Mortgage Loan, to sell 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) The
Sponsor has the full corporate power and authority 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 of the
Sponsor, enforceable against the Sponsor 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 the Sponsor, 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
of
the Sponsor and will not (A) result in a material breach of any term or
provision of its charter or by-laws of the Sponsor 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 the Sponsor of
any
court, regulatory body, administrative agency or governmental body having
jurisdiction over the Sponsor; and the Sponsor 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) No
litigation is pending or, to the best of the Sponsor’s knowledge, threatened,
against the Sponsor that would materially and adversely affect the execution,
delivery or enforceability of this Agreement or its ability to perform any
of
its obligations under this Agreement in accordance with the terms
hereof.
(v) No
consent, approval, authorization or order of any court or governmental agency
or
body is required for the execution, delivery and performance by the Sponsor
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, the Sponsor has obtained the same.
(vi) The
Sponsor has the right to terminate GMACM as the Servicer of the Mortgage
Loans
pursuant to Section 7.06 of the Pooling and Servicing Agreement and such
termination shall be exercised in accordance with the terms and conditions
of
the Pooling and Servicing Agreement and all applicable law.
SECTION
5. Conditions Precedent.
The
transactions contemplated by this Agreement shall be conditioned upon the
satisfaction of the following conditions precedent:
(i) each
of
the Sponsor, GMACM and the Master Servicer shall have executed this Agreement
evidencing its consent to the appointment of Xxxxx Fargo as the Servicer
of the
Xxxxx Fargo Mortgage Loans under the Pooling and Servicing
Agreement;
(ii) Xxxxx
Fargo shall have executed this Agreement evidencing its acceptance of its
appointment as the Servicer of the Xxxxx Fargo Mortgage Loans under the Pooling
and Servicing Agreement and its agreement to be bound by the terms of this
Agreement and the Pooling and Servicing Agreement;
(iii) the
Sponsor shall have notified GMACM of its decision to terminate GMACM as the
Servicer of the Xxxxx Fargo Mortgage Loans under the Pooling and Servicing
Agreement; and
(iv) each
Rating Agency has been notified in writing of the appointment of Xxxxx Fargo
as
a Servicer.
SECTION
6. Effectiveness of this Agreement.
Upon
execution of this Agreement, the Pooling and Servicing Agreement shall be,
and
be deemed to be, modified and amended in accordance herewith and the respective
rights, limitations, obligations, duties, liabilities and immunities of the
Depositor, the Sponsor, Xxxxx Fargo, GMACM, the Master Servicer, the Securities
Administrator and the Trustee shall hereafter be determined, exercised and
enforced subject in all respects to such modifications and amendments, and
all
the terms and conditions of this Agreement shall be deemed to be part of
the
terms and conditions of the Pooling and Servicing Agreement for any and all
purposes. Except as modified and expressly amended by this Agreement, the
Pooling and Servicing Agreement is in all respects ratified and confirmed,
and
all the terms, provisions and conditions thereof shall be and remain in full
force and effect.
SECTION
7. Binding Effect.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the respective successors and assigns of the parties hereto, and all such
provisions shall inure to the benefit of the Depositor, the Sponsor, Xxxxx
Fargo, GMACM, the Master Servicer, the Securities Administrator and the
Trustee.
SECTION
8. Governing Law.
This
Agreement shall be construed in accordance with the substantive laws of the
State of New York (without regard to conflict of law principles) and the
obligations, rights and remedies of the parties hereto shall be determined
in
accordance with such laws.
SECTION
9. Severability of Provisions.
If
any
one or more of the provisions or terms of this Agreement shall be for any
reason
whatsoever held invalid, then such provisions or terms shall be deemed severable
from the remaining provisions or terms of this Agreement and shall in no
way
affect the validity or enforceability of the other provisions or terms of
this
Agreement.
SECTION
10. Section Headings.
The
section headings herein are for convenience of reference only, and shall
not
limit or otherwise affect the meaning hereof.
SECTION
11. Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be
an
original and all of which shall constitute but one and the same
instrument.
[signature
pages follow]
IN
WITNESS WHEREOF, the Depositor, the Sponsor, Xxxxx Fargo, GMACM, the Securities
Administrator and the Trustee have caused their names to be signed hereto
by
their respective officers thereunto duly authorized as of the day and year
first
above written.
|
NOMURA
ASSET ACCEPTANCE CORPORATION,
as
Depositor
|
|||||||||||||
|
By:
|
/s/
Xxxx X. Xxxxxx
|
||||||||||||
|
Name:
|
Xxxx
X. Xxxxxx
|
||||||||||||
|
Title:
|
President
|
||||||||||||
|
NOMURA
CREDIT & CAPITAL, INC.,
as
Sponsor
|
|||||||||||||
|
By:
|
/s/
Xxxxxxx X.X. Xxxxxxx
|
||||||||||||
|
Name:
|
Xxxxxxx
X.X. Xxxxxxx
|
||||||||||||
|
Title:
|
Vice
President
|
||||||||||||
|
XXXXX
FARGO BANK, NATIONAL
ASSOCIATION,
as
a Servicer
|
|||||||||||||
|
By:
|
/s/
Xxxxxx XxXxxxxx
|
||||||||||||
|
Name:
|
Xxxxxx
XxXxxxxx
|
||||||||||||
|
Title:
|
Vice
President
|
||||||||||||
|
GMAC
MORTGAGE, LLC,
as
a Servicer
|
|||||||||||||
|
By:
|
/s/
Xxxxxx X. Xxxxxxx
|
||||||||||||
|
Name:
|
Xxxxxx
X. Xxxxxxx
|
||||||||||||
|
Title:
|
Vice
President
|
||||||||||||
|
XXXXX
FARGO BANK, NATIONAL
ASSOCIATION,
as
Master Servicer and Securities Administrator
|
|||||||||||||
|
By:
|
/s/
Xxxxxxx Xxx Xxxxxx
|
||||||||||||
|
Name:
|
Xxxxxxx Xxx Xxxxxx | ||||||||||||
|
Title:
|
Vice President | ||||||||||||
|
HSBC
BANK USA, NATIONAL
ASSOCIATION
as
Trustee
|
|||||||||||||
|
By:
|
/s/
Xxxxx Xxxxx
|
||||||||||||
|
Name:
|
Xxxxx
Xxxxx
|
||||||||||||
|
Title:
|
Assistant
Vice President
|
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SCHEDULE
1
SCHEDULE
OF XXXXX FARGO MORTGAGE LOANS
