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 October 2, 2006, 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”), 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,
Xxxxx Fargo, GMAC Mortgage Corporation (“GMACM”) and the Trustee entered into
the Pooling and Servicing Agreement (the “Pooling and Servicing Agreement”),
dated as of July 1, 2006, relating to Nomura Asset Acceptance Corporation,
Mortgage Pass-Through Certificates, Series 2006-AF2;
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 “Transferred 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 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 therein, to change the manner in which
the
Distribution Account maintained by the Securities Administrator or the Custodial
Accounts maintained by the Servicers is 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 Transferred 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 a Servicer under the Pooling and Servicing Agreement
with respect to the Transferred Mortgage Loans to be effective on October 2,
2006 (the “Termination Date”).
(b) In
connection with the appointment of Xxxxx Fargo as the Servicer of the
Transferred Mortgage Loans 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 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, hereby designates Xxxxx Fargo as the
Servicer of the Transferred Mortgage Loans from and after the Termination
Date.
(d) Xxxxx
Fargo hereby represents and warrants, as of the date hereof, that it (i) is
a
Xxxxxx Mae and Xxxxxxx Mac approved seller/servicer in good standing and has
a
net worth of at least $15,000,000; (ii) meets all requirements of a servicer
set
forth in Section 8.02 of the Pooling and Servicing Agreement, (iii) 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, 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 Transferred 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.
Each
reference in the Pooling and Servicing Agreement to the “GMACM Mortgage Loans”
is hereby deemed to be a reference to the “Xxxxx Fargo Mortgage
Loans”.
SECTION
4. Representations and Warranties of the Depositor and Sponsor.
(a)
Xxxxx
Fargo hereby represents and warrants to the Sponsor, the Depositor, the Master
Servicer, the Securities Administrator and the Trustee that the representations
and warranties in Section 2.03(b) of the Pooling and Servicing Agreement are
true and correct as of the date hereof.
(b)
The
Depositor hereby represents and warrants to the Sponsor, Xxxxx Fargo, the Master
Servicer, the Securities Administrator and the Trustee that the representations
and warranties in Section 2.04 of the Pooling and Servicing Agreement are true
and correct as of the date hereof.
(c)
The
Sponsor hereby represents and warrants to the Depositor, Xxxxx Fargo, the Master
Servicer, the Securities Administrator and the Trustee that the representations
and warranties in Section 2.03(c) are true and correct as of the date hereof.
The Sponsor hereby makes the following additional representation and
warranty:
(i) The
Sponsor has the right to terminate GMACM as the Servicer of the Transferred
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 and the Master Servicer shall have executed this Agreement
evidencing its consent to the appointment of Xxxxx Fargo as the Servicer of
the
Transferred 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 Transferred 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 Transferred 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
the Servicer of the Transferred Mortgage Loans.
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, 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, 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, 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
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
SCHEDULE
1
SCHEDULE
OF TRANSFERRED MORTGAGE LOANS
