APPOINTMENT, ASSUMPTION AND 


AMENDMENT AGREEMENT


 


THIS APPOINTMENT, ASSUMPTION AND AMENDMENT AGREEMENT (this “Agreement”), dated as of July 1, 2005, is by and among Wells Fargo Bank, N.A. (“Wells Fargo”), Nomura Asset Acceptance Corporation, as depositor (the “Depositor”), Nomura Credit & Capital, Inc., as seller (the “Seller”) and HSBC Bank USA, National Association (“HSBC”).


 


W I T N E S S E T H


 


WHEREAS, the Depositor, the Seller, GMAC Mortgage Corporation (“GMACM”) and Wells Fargo Bank, N.A. as Trustee (the “Original Trustee”) 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-AP3;


 


WHEREAS, the Original Trustee, GMACM as a servicer, M&T Mortgage Corporation as a servicer, and JPMorgan Chase Bank, N.A. as the custodian (the “Custodian”) entered into the Custodial Agreement (the “Custodial Agreement”), dated as of November 1, 2004, relating to Nomura Asset Acceptance Corporation, Mortgage Pass-Through Certificates, Series 2005-AP3;


 


WHEREAS, the Original Trustee and Nomura Global Financial Products Inc. (the “Cap Provider”) entered into the cap agreement between dated as of November 30, 2004 (the “Cap Agreement”), relating to the Class A-1 Certificates;


 


WHEREAS, the Seller entered into the Certificate Guaranty Insurance Policy (the “Insurance Policy”), dated November 30, 2004, with Ambac Assurance Corporation (“Ambac”), relating to the Class A-4, Class A-5A and Class A-6 Certificates;


 


WHEREAS, the Depositor, the Original Trustee and the Depository Trust Company entered into the Depository Agreement (the “Depository Agreement, together with the Custodial Agreement, the Cap Agreement, the Insurance Policy and the Depository Agreement, the “Related Agreements”), dated as of November 30, 2004;


 


WHEREAS, HSBC as successor trustee and Wells Fargo as securities administrator entered in an Administration Agreement dated as of July 1, 2005 (the “Administration Agreement”) whereby Wells Fargo assumed all administration functions of the Nomura Asset Acceptance Corporation, Mortgage Pass-Through Certificates, Series 2004-AP3;


 


WHEREAS, pursuant to Section 9.08 of the Pooling and Servicing Agreement, the Original Trustee, in its capacity as Trustee, may resign, and does hereby so resign, as trustee of the Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 


 









2004-AP3 and the Depositor has the right to appoint a successor Trustee satisfying the qualifications of Section 9.06 of the Pooling and Servicing Agreement;


 


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 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 Wells Fargo as Trustee thereunder and to better effectuate the replacement of GMACM as 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 Trustee.


 


 (a)       The Depositor hereby appoints and designates HSBC as successor trustee of the Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2004-AP3 under the Pooling and Servicing Agreement subject to the satisfaction of the conditions precedent set forth in Section 7 of this Agreement; the Original Trustee will provide written notification to each of the Rating Agencies of its resignation as Trustee under the 


 









Pooling and Servicing Agreement to be effective on July 1, 2005 (the “Resignation Date”).


 


 (b)       HSBC hereby (i) represents and warrants that it meets all requirements of a successor Trustee set forth in Section 9.06 of the Pooling and Servicing Agreement, (ii) accepts the appointment as Trustee of the Nomura Asset Acceptance Corporation, Alternative Loan Trust, Series 2004-AP3 under the Pooling and Servicing Agreement from and after the Resignation Date, (iii) agrees to provide written notice of its appointment to each Certificateholder not later than ten (10) days of the date hereof, in accordance with Section 9.09 of the Pooling and Servicing Agreement, and the notices required by Sections 11.05 and 12.04 of the Pooling and Servicing Agreement, (iv) assumes and agrees to discharge the due and punctual performance and observance of each covenant and condition to be performed and observed by the Trustee under the Pooling and Servicing
Agreement, as amended hereby, and the Related Agreements and (v) assumes and agrees to be bound by all terms and conditions of the Pooling and Servicing Agreement, as amended hereby, and the Related Agreements.


 


SECTION 3. 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 Transferred Mortgage Loans, and subject to the satisfaction of the conditions precedent set forth in Section 7 of this Agreement, the Seller will provide written notification to GMACM of its termination as Servicer of the Transferred Mortgage Loans under the Pooling and Servicing Agreement to be effective on July 1, 2005 (the “Termination Date”).


 


 (b)       In connection with the appointment of Wells Fargo as successor Servicer of the Transferred Mortgage Loans 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 Depositor, the Seller and HSBC, subject to the satisfaction of the conditions precedent set forth in Section 7 of this Agreement, consent to the appointment of Wells Fargo as successor Servicer of the Transferred Mortgage Loans under the Pooling and Servicing Agreement and hereby designate Wells Fargo as 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 successor Servicer set forth in Section 8.02 of the Pooling and Servicing Agreement, (ii) accepts the appointment as 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 the Servicer under the Pooling and Servicing Agreement, as amended hereby, with respect to the Transferred Mortgage Loans and (iv) 


 









assumes and agrees to be bound by all terms and conditions of the Pooling and Servicing Agreement, as amended hereby, and acknowledges that, with respect to the Transferred Mortgage Loans, all references in the Pooling and Servicing Agreement to “GMACM” shall be deemed to refer to Wells Fargo.


 


 (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 as successor servicer with respect to the Transferred Mortgage Loans 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 4.
 	
            Acknowledgment of Wells Fargo as Securities Administrator
 



 


The Cap Provider hereby acknowledges Wells Fargo in its capacity as securities administrator pursuant to the Administration Agreement and hereby agrees that remittances required pursuant to the Cap Agreement, shall continue to be made to Wells Fargo in its capacity as Securities Administrator.


 


SECTION 5. Amendments to Pooling and Servicing Agreement.


 



	
            (a)
 	
            The following definitions are added to Article 1:
 



 


 “Wells Fargo: Shall mean Wells Fargo Bank, National Association acting in its capacity as the servicer in connection with the Transferred Mortgage Loans.”


 


 “Wells Fargo Mortgage Loans: Shall mean those Mortgage Loans serviced by Wells Fargo pursuant to the terms of this Agreement as set forth on Schedule 1 hereto”.


 


 (b)       The definition of Servicer in Article 1 is amended by deleting the word “or” between “M&T” and “GreenPoint”, inserting a comma after “M&T” and adding “or Wells Fargo” at the end thereof.


 



	
            (c)
 	
            The definition of Corporate Trust Office is replaced with the following:
 



 


 “Corporate Trust Office: The principal corporate trust office of the Trustee which office at the date of the execution of this instrument is located at 452 Fifth Avenue, New York, New York 10018, Attention: Nomura Asset Acceptance Corp., 2004-AP3, or at such other address as the Trustee may designate from time to time by notice to the Certificateholders, the Depositor and each Servicer.  Notwithstanding the foregoing, for purposes of transfer and exchange and of presentment and surrender of the Certificates and final payment thereon, the designated office of the Trustee shall be c/o Wells Fargo Bank, N.A., Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479, 


 









Attention: NAAC 2004-AP3, or such other address as the Trustee may designate from time to time by notice to the Certificateholders and the Depositor.”


 


(d)        The definition of Distribution Account in Article 1 is amended by replacing “Wells Fargo Bank, National Association” with “HSBC Bank USA, National Association”.


 


(e)        The definition of Trustee in Article 1 is amended by replacing “Wells Fargo Bank, National Association” with “HSBC Bank USA, National Association”.


 


(f)         Section 4.01(b) of the Pooling and Servicing Agreement is amended by replacing “Wells Fargo Bank, National Association” in the first paragraph thereof with “HSBC Bank USA, National Association”.


 


(g)        Section 5.10 of the Pooling and Servicing Agreement is amended by replacing “Wells Fargo Bank, National Association” in the fourth line thereof with “HSBC Bank USA, National Association”.


 


(h)        The Pooling and Servicing Agreement is hereby amended by annexing the list of Transferred Mortgage Loans as Schedule 1 to the end thereof.


 


(i)         The Mortgage Loan Schedule attached as Exhibit B-1 to the Pooling and Servicing Agreement is hereby amended by revising item (xii) for each Transferred Mortgage Loan to indicate Wells Fargo as the Servicer for such Transferred Mortgage Loan.


 


 (j)        The following representations and warranties are hereby made by Wells Fargo to the Seller, the Depositor and HSBC as of the date hereof:


 


(k)        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 credit repositories in a timely manner materially in accordance with the Fair Credit Reporting Act and its implementing legislation.


 


(viii)      Wells 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)        Wells Fargo will not waive any Prepayment Charge with respect to a Wells Fargo Mortgage Loan unless it is waived in accordance with the standards set forth in Section 3.01.


 









 


 (l)        From and after the Termination Date, any and all references to the representations and warranties of GMACM with respect to the Transferred Mortgage Loans in the Pooling and Servicing Agreement shall, and shall be deemed to be, references to the representations and warranties of Wells Fargo set forth in clause (a) above.


 


 (m)      Section 7.06(a) of the Pooling and Servicing Agreement is hereby amended by deleting the section in its entirety and replacing it with the following:


 


“(a)      If at any time, the Seller acquires from Wells Fargo Bank, N.A. the rights to service any of the Mortgage Loans (a “Wells Fargo Mortgage Loan”), then Wells Fargo Bank, N.A. shall continue to service the related Mortgage Loans as the Servicer hereunder.  Upon Seller acquiring the Servicing Rights, the Seller may, at its option, terminate the servicing responsibilities of Wells Fargo Bank, N.A., as Servicer hereunder with respect to any such Wells Fargo Mortgage Loans without cause. No such termination shall become effective unless and until a successor to Wells Fargo Bank, N.A. shall have been appointed to service and administer the related Wells Fargo Mortgage Loans pursuant to the terms and conditions of this Agreement. No appointment shall be effective unless (i) such successor to Wells Fargo Bank, N.A. meets the eligibility criteria contained in Section 8.02, (ii) the Trustee
shall have consented to such appointment, (iii) the Rating Agencies have confirmed in writing that such appointment will not result in a downgrade, qualification or withdrawal of the then current ratings assigned to the Certificates, (iv) such successor has agreed to assume the obligations of Wells Fargo Bank, N.A. hereunder to the extent of the related Wells Fargo Mortgage Loans and (v) all amounts reimbursable to Wells Fargo Bank, N.A. pursuant to the terms of this Agreement shall have been paid to Wells Fargo Bank, N.A. by the successor appointed pursuant to the terms of this Section 7.06 or by the Seller including without limitation, all unreimbursed Advances and Servicing Advances made by Wells Fargo Bank, N.A. and all out-of-pocket expenses of Wells Fargo Bank, N.A. incurred in connection with the transfer of servicing to such successor.  The Seller shall provide a copy of the written confirmation of the Rating Agencies and the agreement executed by such successor to the
Trustee.”


 


 (n)        Section 7.06(b) of the Pooling and Servicing Agreement is hereby amended by deleting the section in its entirety.


 


 (o)       Section 11.05(b)(vii) of the Pooling and Servicing Agreement is hereby amended by replacing the period following the words “Home Equity Monitoring” with a semi-colon and adding the following language thereafter:


 


“ and (viii) in the case of Wells Fargo, 1 Home Campus Des Moines, Iowa 50328-0001.”


 


SECTION 6. Representations and Warranties of the Depositor and Seller.


 


 









 


 (a) The following representations and warranties are hereby made by the Depositor to the Seller, Wells Fargo 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) 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)        No litigation is pending or, to the best of its knowledge, threatened, against it 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 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.


 









 


 (b) The following representations and warranties are hereby made by the Seller to the Depositor, Wells Fargo and the Trustee as of the date hereof:


 


(i)         The Seller 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 Seller 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)         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) 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)        No litigation is pending or, to the best of its knowledge, threatened, against it 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 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.


 


 (vi)       It has the right to terminate GMACM 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 7. Conditions Precedent.


 


The transactions contemplated by this Agreement shall be conditioned upon the satisfaction of the following conditions precedent:


 


 (i) Wells Fargo shall have executed this Agreement evidencing its resignation as trustee under the Pooling and Servicing Agreement;


 


(ii)         HSBC shall have executed this Agreement evidencing its acceptance of its appointment as successor Trustee 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) each of the Seller and the Depositor shall have executed this Agreement evidencing its consent to the appointment of Wells Fargo as Servicer with respect to the Transferred Mortgage Loans under the Pooling and Servicing Agreement;


 


 (iv) Wells 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;


 


 (v) the Seller shall have notified GMACM of its decision to terminate GMACM as Servicer of the Transferred Mortgage Loans under the Pooling and Servicing Agreement;


 


 (vi) a Confirmation Letter from each Rating Agency with respect to the transactions contemplated hereby. “Confirmation Letter” means, a letter issued by each Rating Agency confirming that the transactions contemplated hereby will not result in a qualification, downgrade or withdrawal of the respective ratings of the Certificates from the current ratings; and


 


 (vii) an Opinion of Counsel to the effect that (i) such amendment will not cause the imposition of any tax on any REMIC created under the Pooling and Servicing Agreement or on the Certificateholders, or cause any REMIC created under the Pooling 


 









and Servicing Agreement to cease to qualify as a REMIC at any time that any Certificates are outstanding, (ii) such amendment is permitted and is not prohibited by the Pooling and Servicing Agreement and (iii) all requirements for amending the Pooling and Servicing Agreement have been complied with.


 


SECTION 8. 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 Seller, Wells Fargo, the Depositor and HSBC 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 9. 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 Seller, Wells Fargo, the Depositor and HSBC.


 


SECTION 10. 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 11. 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 12. Section Headings.


 


The section headings herein are for convenience of reference only, and shall not limit or otherwise affect the meaning hereof.


 


SECTION 13. 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 Seller, Wells Fargo and HSBC 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/ John P. Graham
 	
             

	
            Name: John P. Graham
 	
             

	
            Title: Authorized Agent
 



 



	
            NOMURA CREDIT & CAPITAL, INC.,
 
	
            as Seller
 	
             




 



	
            By: /s/ Jeane D. Leschak
 
	
            Name: Jeane D. Leschak
 
	
            Title: Vice President
 	
             




 



	
            WELLS FARGO BANK, NATIONAL ASSOCIATION,
 
	
            as Successor Servicer
 	
             




 



	
            By: /s/ Laurie McGoogan
 
	
            Name: Laurie McGoogan
 
	
            Title: Vice President
 	
             




 



	
            HSBC BANK USA, NATIONAL ASSOCIATION  
 
	
            as Successor Trustee
 	
             




 



	
            By: /s/ Wendy Zhang
 	
             

	
            Name: Wendy Zhang
 	
             

	
            Title: Assistant Vice President
 
			



 


ACKNOWLEDGED AND AGREED


WELLS FARGO BANK, N.A.  


as Original Trustee


 


By: /s/Peter J. Masterman  


Name: Peter J. Masterman


Title: Vice President


 


ACKNOWLEDGED AND AGREED


NOMURA GLOBAL FINANCIAL PRODUCTS, INC.  


as the Cap Provider


 


By: /s/ Thomas M. Salatte


Name: Thomas M. Salatte


Title: General Counsel, Secretary and Director



 









 


SCHEDULE 1


TRANSFERRED MORTGAGE LOANS