Exhibit 99.3
EXECUTION COPY
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GSAA HOME EQUITY TRUST 2006-17
ASSET-BACKED CERTIFICATES
SERIES 2006-17
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
COUNTRYWIDE HOME LOANS, INC.,
as Countrywide
and
COUNTRYWIDE HOME LOANS SERVICING LP,
as Servicer
Dated as of
October 30, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment
Agreement") made this 30th day of October, 2006, among Countrywide Home Loans
Servicing LP, (the "Servicer"), Countrywide Home Loans, Inc. ("Countrywide"), GS
Mortgage Securities Corp., as assignee (the "Assignee") and Xxxxxxx Sachs
Mortgage Company, as assignor (the "Assignor").
WHEREAS, the Assignor and the Servicer have entered into the
Servicing Agreement, dated as of July 1, 2004, as amended by that certain
Amendment Reg AB dated as of January 1, 2006 ("Amendment Reg AB" and, together
with the Servicing Agreement, the "Servicing Agreement"), and the Assignor and
Countrywide have entered into the Master Mortgage Loan Purchase Agreement, dated
as of July 1, 2004, as amended by that certain Amendment Reg AB (as amended, the
"Sale Agreement") pursuant to which Countrywide sold to the Assignor certain
mortgage loans listed on the mortgage loan schedule attached to the related
Purchase Confirmation (as defined in the Sale Agreement);
WHEREAS, the Assignee has agreed on certain terms and conditions to
purchase from the Assignor certain of the mortgage loans (the "Mortgage Loans"),
which are subject to the provisions of the Servicing Agreement and Sale
Agreement and are listed on the mortgage loan schedule attached as Exhibit 1
hereto (the "Mortgage Loan Schedule"); and
WHEREAS, pursuant to a Master Servicing and Trust Agreement, dated
as of October 1, 2006 (the "Trust Agreement"), among GS Mortgage Securities
Corp., as depositor, Deutsche Bank National Trust Company, as trustee (the
"Trustee") and as a custodian, The Bank of New York, as a custodian, U.S. Bank
National Association, as a custodian and Xxxxx Fargo Bank, National Association,
as master servicer (in such capacity, the "Master Servicer"), and securities
administrator, the Assignee will transfer the Mortgage Loans to the Trustee,
together with the Assignee's rights and obligations under the Servicing
Agreement, to the extent relating to the Mortgage Loans (other than the rights
of the Assignor (and if applicable its affiliates, officers, directors and
agents) to indemnification thereunder);
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption. (a) The Assignor hereby assigns to the
Assignee, as of the date hereof, all of its right, title and interest in and to
the Mortgage Loans, and all rights and obligations of the Assignor under the
Servicing Agreement and the Sale Agreement, to the extent relating to the
Mortgage Loans (other than the rights of the Assignor (and if applicable its
affiliates, officers, directors and agents) to indemnification thereunder) from
and after the date hereof), and the Assignee hereby assumes all of the
Assignor's obligations under the Servicing Agreement and the Sale Agreement, to
the extent relating to the Mortgage Loans, from and after October 30, 2006, and
the Servicer hereby acknowledges such assignment and assumption and hereby
agrees to the release of the Assignor from any obligations under the Servicing
Agreement from and after October 30, 2006, to the extent relating to the
Mortgage Loans and Countrywide hereby acknowledges such assignment and
assumption and hereby
agrees to the release of the Assignor from any obligations under the Sale
Agreement from and after October 30, 2006, to the extent relating to the
Mortgage Loans.
(b) The Assignor represents and warrants to the Assignee that the
Assignor has not taken any action which would serve to impair or encumber the
Assignor's ownership interest in the Mortgage Loans since the respective dates
of the Servicing Agreement and Sale Agreement.
(c) The Servicer and the Assignor shall have the right to amend,
modify or terminate the Servicing Agreement without the joinder of the Assignee
with respect to mortgage loans not conveyed to the Assignee hereunder to the
extent permitted by the Servicing Agreement; provided, however, that such
amendment, modification or termination shall not affect or be binding on the
Assignee.
(d) Countrywide and the Assignor shall have the right to amend,
modify or terminate the Sale Agreement without the joinder of the Assignee with
respect to mortgage loans not conveyed to the Assignee hereunder to the extent
permitted by the Servicing Agreement; provided, however, that such amendment,
modification or termination shall not affect or be binding on the Assignee.
2. Modification of the Servicing Agreement. Only in so far as it
relates to the Mortgage Loans, the Servicer and the Assignor hereby amend the
Servicing Agreement as follows:
(a) the definition of "Business Day" in Section 1 shall be amended
by deleting the definition in its entirety and replacing it with the following:
"Business Day: Any day other than (i) a Saturday or Sunday, or (ii)
a day on which banking or savings and loan institutions in the States of
California, Maryland, Minnesota, Texas or New York are authorized or obligated
by law or executive order to be closed."
(b) Section 3.13(b) shall be amended by deleting the second
paragraph thereof and replacing it with the following:
"The Company shall use its best efforts to dispose of the REO
Property as soon as possible and shall sell such REO Property in any event
within three years after title has been taken to such REO Property, not later
than the end of the third taxable year after the year of its acquisition unless
(i) (A) a REMIC election has not been made with respect to the arrangement under
which the Mortgage Loans and the REO Property are held, (ii) the Company obtains
an extension from the Internal Revenue Service and (iii) the Company determines,
and gives an appropriate notice to the Owner to such effect, that a longer
period is necessary for the orderly liquidation of such REO Property. If a
period longer than three years is permitted under the foregoing sentence and is
necessary to sell any REO Property, (i) the Company shall report monthly to the
Owner as to the progress being made in selling such REO Property and (ii) if,
with the written consent of the Owner, a purchase money mortgage is taken in
connection with such sale, such purchase money mortgage shall name the Servicer
as mortgagee, and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate
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participation agreement among the Company and Owner shall be entered into with
respect to such purchase money mortgage."
(c) Section 7.1 shall be amended as follows:
(i) Subsection (ii) of Section 7.1 shall be deleted in its entirety
and replaced with the following:
"failure by the Company duly to observe or perform in any material
respect any of the covenants or agreements on the part of the Company set forth
in this Agreement (other than those listed in subsection (i) and subsection (ix)
of this Section 7.1) which continues unremedied for a period of 30 days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Company; or"
(ii) Subsection (vii) of Section 7.1 shall be amended by deleting
the "." at the end of subsection (vii) and replacing it with "; or"
(iii) Subsection (viii) of Section 7.1 shall be amended by deleting
the "." at the end of subsection (viii) and replacing it with "; or"
(iv) A new subsection (ix) shall be added immediately following
subsection (viii) which shall be as follows:
"failure by the Company duly to observe or perform in any material
respect any of the covenants or agreements on the part of the Company set forth
in Section 5.6 of this Agreement which continues unremedied for a period of 10
days after the date on which written notice of such failure, requiring the same
to be remedied shall have been given to the Company."
(d) Section 9.1(b) shall be amended by deleting it in its entirety
and replacing it with the following:
"The Company shall deliver to the successor (i) the funds in the
Custodial Account and the Escrow Account to which the Owner is entitled pursuant
to the terms of this Agreement, (ii) all other funds to which the Owner is
entitled pursuant to the terms of this Agreement and (iii) all other amounts
which may thereafter be received with respect to the Mortgage Loans and to which
the Company is not entitled pursuant to the terms of this Agreement within two
Business Days of notice of the appointment of such successor. The Company shall
deliver to the successor all Collateral Files and Servicing Files and related
documents and statements held by it hereunder within thirty calendar days of
receipt of notice of the appointment of such successor. The Company shall
account for all funds and shall execute and deliver such instruments and do such
other things as may reasonably be required to more fully and definitively vest
in the successor all such rights, powers, duties, responsibilities, obligations
and liabilities of the Company."
(e) Section 2(c)(iv) of that certain Amendment Reg AB shall be
amended by deleting it in its entirety and replacing it with the following:
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"For the purpose of satisfying its reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the Company
shall (or shall cause each Subservicer and, if applicable, any Third-Party
Originator to) (a) provide prompt notice to the Purchaser, any Master Servicer
and any Depositor in writing of (1) any merger, consolidation or sale of
substantially all of the assets of the Company, (2) the Company's entry into an
agreement with a Subservicer to perform or assist in the performance of any of
the Company's obligations under the Agreement or any Reconstitution Agreement
that qualifies as an "entry into a material definitive agreement" under Item
1.01 of the form 8-K, (3) any Event of Default under the terms of the Agreement
or any Reconstitution Agreement to the extent not known by such Purchaser,
Master Servicer or Depositor, and (4) any material litigation or governmental
proceedings involving the Company, any Subservicer or any Third Party
Originator."
(f) A new Section 2(c)(vi) shall be added to that certain Amendment
Reg AB as follows:
"The Company shall provide to the Purchaser and any Depositor a
description of any affiliation or relationship required to be disclosed under
Item 1119 between the Company and any of the parties listed in Items 1119
(a)(1)-(6) of Regulation AB that develops following the closing date of a
Securitization Transaction (other than an affiliation or relationship that the
Purchaser, the Depositor or the issuing entity is required to disclose under
Item 1119 of Regulation AB) no later than 15 calendar days prior to the date the
Depositor is required to file its Form 10-K disclosing such affiliation or
relationship. For purposes of the foregoing, the Company (1) shall be entitled
to assume that the parties to the Securitization Transaction with whom
affiliations or relations must be disclosed are the same as on the closing date
if it provides a written request (which may be by e-mail) to the Depositor or
Master Servicer, as applicable, requesting such confirmation and either obtains
such confirmation or receives no response within three (3) Business Days, (2)
shall not be obligated to disclose any affiliations or relationships that may
develop after the closing date for the Securitization Transaction with any
parties not identified to the Company pursuant to clause (D) of paragraph (i) of
this Section 2(c), and (3) shall be entitled to rely upon any written
identification of parties provided by the Depositor, the Purchaser or any master
servicer."
(g) A new section 6 shall be added immediately following section 5
of that certain Amendment Reg AB which shall be as follows:
"6. Xxxxx Fargo Bank, National Association, as master servicer under
the Master Servicing and Trust Agreement, dated as of October 1, 2006, among GS
Mortgage Securities Corp., Deutsche Bank National Trust Company, as trustee and
as a custodian, U.S. Bank National Association, as a custodian, The Bank of New
York, as a custodian and Xxxxx Fargo Bank, National Association, as master
servicer and securities administrator, shall be considered a third-party
beneficiary to Sections 2(d), 2(e) and 2(g) of this Amendment Reg AB (solely
with respect to noncompliance under Sections 2(d) and 2(e) of this Amendment Reg
AB), entitled to all the rights and benefits thereof as if it were a direct
party to the Amendment Reg AB."
(h) Exhibit B of that certain Amendment Reg AB shall be deleted in
its entirety and be replaced with a new "Exhibit B" which shall be as set forth
in Exhibit 3 attached to this Assignment Agreement.
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3. Accuracy of the Servicing Agreement and the Sale Agreement. (a)
The Assignor represents and warrants to the Assignee that attached hereto as
Exhibit 2 is a true, accurate and complete copy of the Servicing Agreement. The
Servicer and the Assignor represent and warrant to the Assignee that (i) the
Servicing Agreement is in full force and effect as of the date hereof, (ii)
except as set forth in this Assignment Agreement, the Servicing Agreement has
not been amended or modified in any respect and (iii) no notice of termination
has been given to the Servicer under the Servicing Agreement. The Servicer, in
its capacity as servicer under the Servicing Agreement, further represents and
warrants that the representations and warranties contained in Section 2.1 of the
Servicing Agreement are true and correct in all material respects as of the
Closing Date (as such term is defined in the Servicing Agreement).
(b) Countrywide and the Assignor represent and warrant to the
Assignee (i) the Sale Agreement is in full force and effect as of the date
hereof, (ii) the Sale Agreement has not been amended or modified in any respect
except as contemplated herein and (iii) no notice of termination has been given
to Countrywide under the Sale Agreement. Countrywide, in its capacity as seller
under the Sale Agreement, further represents and warrants that the
representations and warranties contained in Section 3.01 of the Sale Agreement
are true and correct in all material respects as of the Closing Date (as such
term is defined in the Sale Agreement).
4. Recognition of Assignee. From and after the date hereof or until
the Assignee no longer owns the Mortgage Loans, the Servicer shall note the
transfer of the Mortgage Loans to the Assignee in its books and records, shall
recognize the Assignee as the owner of the Mortgage Loans and, notwithstanding
anything herein to the contrary, shall service all of the Mortgage Loans for the
benefit of the Assignee pursuant to the Servicing Agreement the terms of which
are incorporated herein by reference. It is the intention of the Assignor,
Countrywide and Assignee that the Sale Agreement shall be binding upon and inure
to the benefit of Countrywide and the Assignee and their successors and assigns.
5. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor, Countrywide and the Servicer as
follows:
(a) Decision to Purchase. The Assignee represents and warrants that
it is a sophisticated investor able to evaluate the risks and merits of the
transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor, Countrywide or
the Servicer other than those contained in the Sale Agreement, the Servicing
Agreement or this Assignment Agreement.
(b) Authority. The Assignee hereto represents and warrants that it
is duly and legally authorized to enter into this Assignment Agreement and to
perform its obligations hereunder and under the Servicing Agreement and Sale
Agreement.
(c) Enforceability. The Assignee hereto represents and warrants that
this Assignment Agreement has been duly authorized, executed and delivered by it
and (assuming due authorization, execution and delivery thereof by each of the
other parties hereto) constitutes its legal, valid and binding obligation,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization or other similar laws
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affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
6. Representations and Warranties of the Assignor. The Assignor
hereby represents and warrants to the Assignee, Countrywide, and the Servicer as
follows:
(a) Organization. The Assignor has been duly organized and is
validly existing as a limited partnership in good standing under the laws of the
State of New York with full power and authority (corporate and other) to enter
into and perform its obligations under the Servicing Agreement, the Sale
Agreement and this Assignment Agreement.
(b) Enforceability. This Assignment Agreement has been duly executed
and delivered by the Assignor, and, assuming due authorization, execution and
delivery by each of the other parties hereto, constitutes a legal, valid, and
binding agreement of the Assignor, enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, moratorium, or other
similar laws affecting creditors' rights generally and to general principles of
equity regardless of whether enforcement is sought in a proceeding in equity or
at law.
(c) No Consent. The execution, delivery and performance by the
Assignor of this Assignment Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such as
has been obtained, given, effected or taken prior to the date hereof.
(d) Authorization; No Breach. The execution and delivery of this
Assignment Agreement have been duly authorized by all necessary corporate action
on the part of the Assignor; neither the execution and delivery by the Assignor
of this Assignment Agreement, nor the consummation by the Assignor of the
transactions herein contemplated, nor compliance by the Assignor with the
provisions hereof, will conflict with or result in a breach of, or constitute a
default under, any of the provisions of the governing documents of the Assignor
or any law, governmental rule or regulation or any material judgment, decree or
order binding on the Assignor or any of its properties, or any of the provisions
of any material indenture, mortgage, deed of trust, contract or other instrument
to which the Assignor is a party or by which it is bound.
(e) Actions; Proceedings. There are no actions, suits or proceedings
pending or, to the knowledge of the Assignor, threatened, before or by any
court, administrative agency, arbitrator or governmental body (A) with respect
to any of the transactions contemplated by this Assignment Agreement or (B) with
respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and will, if determined adversely to the
Assignor, materially adversely affect its ability to perform its obligations
under this Assignment Agreement.
7. Additional Representations and Warranties of the Assignor With
Respect to the Mortgage Loans. The Assignor hereby represents and warrants to
the Assignee as follows:
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(a) Prior Assignments; Pledges. Except for the sale to the Assignee,
the Assignor has not assigned or pledged any Mortgage Note or the related
Mortgage or any interest or participation therein.
(b) Releases. The Assignor has not satisfied, canceled or
subordinated in whole or in part, or rescinded any Mortgage, and the Assignor
has not released the related Mortgaged Property from the lien of any Mortgage,
in whole or in part, nor has the Assignor executed an instrument that would
effect any such release, cancellation, subordination, or rescission. The
Assignor has not released any Mortgagor, in whole or in part, except in
connection with an assumption agreement or other agreement approved by the
related federal insurer, to the extent such approval was required.
(c) Compliance with Applicable Laws. With respect to each Mortgage
Loan, any and all requirements of any federal, state or local law including,
without limitation, usury, truth-in-lending, real estate settlement procedures,
consumer credit protection, equal credit opportunity, predatory and abusive
lending or disclosure laws applicable to such Mortgage Loan, including without
limitation, any provisions relating to prepayment charges, have been complied
with.
(d) High Cost. No Mortgage Loan is categorized as "High Cost"
pursuant to the then-current Standard & Poor's Glossary for File Format for
LEVELS(R) Version 5.7, Appendix E, as revised from time to time and in effect as
of the Original Purchase Date. Furthermore, none of the Mortgage Loans sold by
the Seller are classified as (a) a "high cost mortgage" loan under the Home
Ownership and Equity Protection Act of 1994, or (b) a "high cost home,"
"covered," "high-cost," "high-risk home," or "predatory" loan under any other
applicable state, federal or local law.
(e) Georgia Fair Lending Act. No Mortgage Loan is secured by a
property in the state of Georgia and originated between October 1, 2002 and
March 7, 2003.
(f) Credit Reporting. The Assignor will cause to be fully furnished,
in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and unfavorable)
on Mortgagor credit files to Equifax, Experian and Trans Union Credit
Information Company (three of the credit repositories), on a monthly basis.
(g) Arbitration. With respect to any Mortgage Loan originated on or
after August 1, 2004, neither the related Mortgage nor the related Mortgage Note
requires the Mortgagor to submit to arbitration to resolve any dispute arising
out of or relating in any way to the mortgage loan transactions.
(h) Prepayment Penalty. No Mortgage Loan originated prior to October
1, 2002 will impose prepayment penalties for a term in excess of five years
after origination.
(i) Bring Down. To the Assignor's knowledge, as of the date of this
document, with respect to each Mortgage Loan, no event has occurred from and
after the Original Purchase Date to the date hereof that would cause any of the
representations and warranties
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relating to such Mortgage Loan set forth in Section 3.02 of the Sale Agreement
to be untrue in any material respect as of the date hereof as if made on the
date hereof. With respect to those representations and warranties which are made
to the best of the Assignor's knowledge, if it is discovered by the Assignor
that the substance of such representation and warranty is inaccurate,
notwithstanding the Assignor's lack of knowledge with respect to the substance
of such representation and warranty, such inaccuracy shall be deemed a breach of
the applicable representation and warranty.
It is understood and agreed that the representations and warranties
set forth in Sections 6 and 7 shall survive delivery of the respective mortgage
loan documents to the Assignee or its designee and shall inure to the benefit of
the Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. Upon the discovery by the Assignor or the Assignee
and its assigns of a breach of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties to this Assignment Agreement, and in no event later than two (2)
Business Days from the date of such discovery. It is understood and agreed that
the obligations of the Assignor set forth in Section 9 to repurchase or, in
limited circumstances, substitute a Mortgage Loan constitute the sole remedies
available to the Assignee and its assigns on their behalf respecting a breach of
the representations and warranties contained in Sections 6 and 7. It is further
understood and agreed that, except as specifically set forth in Sections 6 and
7, the Assignor shall be deemed not to have made the representations and
warranties in Section 7(i) with respect to, and to the extent of,
representations and warranties made, as to the matters covered in Section 7(i),
by Countrywide in the Sale Agreement (or any officer's certificate delivered
pursuant thereto, if any).
It is understood and agreed that, with respect to the Mortgage
Loans, the Assignor has made no representations or warranties to the Assignee
other than those contained in Sections 6 and 7, and no other affiliate of the
Assignor has made any representations or warranties of any kind to the Assignee.
8. Covenants of the Servicer. The Servicer hereby covenants to the
Assignee that, to the extent the Mortgage Loans will be part of a REMIC, the
Servicer shall service the Mortgage Loans and any real property acquired upon
default thereof (including, without limitation, making or permitting any
modification, waiver or amendment of any term of any Mortgage Loan) after the
date hereof in accordance with the Servicing Agreement, but in no event in a
manner that would (a) cause the REMIC to fail to qualify as a REMIC or (b)
result in the imposition of a tax upon the REMIC (including, but not limited to,
the tax on prohibited transactions as defined in Section 860F(a)(2) of the Code,
the tax on contributions to a REMIC set forth in Section 860G(d) of the Code and
the tax on "net income from foreclosure property" as set forth in Section
860G(c) of the Code).
9. Repurchase of Mortgage Loans.
Upon discovery or notice of any breach by the Assignor of any
representation, warranty or covenant under this Assignment Agreement that
materially and adversely affects the value of any Mortgage Loan or the interest
of the Assignee therein (it being understood that any such defect or breach
shall be deemed to have materially and adversely affected the value of the
related Mortgage Loan or the interest of the Assignee therein if the Assignee
incurs a loss as a
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result of such defect or breach), the Assignee promptly shall request that the
Assignor cure such breach and, if the Assignor does not cure such breach in all
material respects within sixty (60) days from the date on which it is notified
of the breach, the Assignee may enforce the Assignor's obligation hereunder to
repurchase such Mortgage Loan from the Assignee at the Repurchase Price as
defined in the Sale Agreement or, in limited circumstances (as set forth below),
substitute such mortgage loan for a Substitute Mortgage Loan (as defined below).
Notwithstanding the foregoing, however, if such breach is a Qualification Defect
as defined in the Sale Agreement, such cure, repurchase or substitution must
take place within ninety (90) days of discovery of such Qualification Defect.
The Assignor shall have the option, but is not obligated, to
substitute a Substitute Mortgage Loan for a Mortgage Loan, rather than
repurchase the Mortgage Loan as provided above, by removing such Mortgage Loan
and substituting in its place a Substitute Mortgage Loan or Loans and providing
the Substitution Adjustment Amount, if any, provided that any such substitution
shall be effected not later than ninety (90) days from the date on which it is
notified of the breach.
In the event Countrywide has breached a representation or warranty
under the Sale Agreement that is substantially identical to a representation or
warranty breached by the Assignor hereunder, the Assignee shall first proceed
against Countrywide to cure such breach or purchase such mortgage loan from the
Trust. If Countrywide does not within ninety (90) days after notification of the
breach, take steps to cure such breach (which may include certifying to progress
made and requesting an extension of the time to cure such breach, as permitted
under the Sale Agreement) or purchase the Mortgage Loan, the Trustee shall be
entitled to enforce the obligations of the Assignor hereunder to cure such
breach or to purchase or substitute for the Mortgage Loan from the Trust.
In addition, the Assignor shall have the option, but is not
obligated, to substitute a Substitute Mortgage Loan for a Mortgage Loan with
respect to which Countrywide has breached a representation and warranty and is
obligated to repurchase such Mortgage Loan under the Sale Agreement, by removing
such Mortgage Loan and substituting in its place a Substitute Mortgage Loan or
Loans, provided that any such substitution shall be effected not later than
ninety (90) days from the date on which it is notified of the breach.
In the event of any repurchase or substitution of any Mortgage Loan
by the Assignor hereunder, the Assignor shall succeed to the rights of the
Assignee to enforce the obligations of Countrywide to cure any breach or
repurchase such Mortgage Loan under the terms of the Sale Agreement with respect
to such Mortgage Loan. In the event of a repurchase or substitution of any
Mortgage Loan by the Assignor, the Assignee shall promptly deliver to the
Assignor or its designee the related Mortgage File and shall assign to the
Assignor all of the Assignee's rights under the Sale Agreement, but only insofar
as the Sale Agreement relates to such Mortgage Loan.
Except as specifically set forth herein, the Assignee shall have no
responsibility to enforce any provision of this Assignment Agreement, to oversee
compliance hereof or to take notice of any breach or default thereof.
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For purposes of this Section, "Deleted Mortgage Loan" and
"Substitute Mortgage Loan" shall be defined as set forth below.
"Deleted Mortgage Loan" A Mortgage Loan which is to be, pursuant to
this Section 9, replaced or to be replaced by the Assignor with a Substitute
Mortgage Loan.
"Substitute Mortgage Loan" A mortgage loan substituted by the
Assignor for a Deleted Mortgage Loan which must, on the date of such
substitution, (i) have an outstanding principal balance, after deduction of all
scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the Stated Principal Balance of
the Deleted Mortgage Loan; (ii) be accruing interest at a rate no lower than and
not more than 2% per annum higher than that of the Deleted Mortgage Loan; (iii)
have a remaining term to maturity not greater than and not more than one year
less than that of the Deleted Mortgage Loan; (iv) be of the same type as the
Deleted Mortgage Loan (i.e., fixed rate or adjustable rate with same periodic
rate cap, lifetime rate cap, and index); and (v) comply with each representation
and warranty set forth in Section 3.02 of the Sale Agreement.
"Substitution Adjustment Amount" means with respect to any Mortgage
Loan, the amount remitted by GSMC on the applicable Distribution Date which is
the difference between the outstanding principal balance of a Substitute
Mortgage Loan as of the date of substitution and the outstanding principal
balance of the Deleted Mortgage Loan as of the date of substitution.
10. Continuing Effect. Except as contemplated hereby, the Servicing
Agreement and Sale Agreement shall remain in full force and effect in accordance
with their respective terms.
11. Governing Law.
THIS ASSIGNMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF).
EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
ASSIGNMENT AGREEMENT, OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN
CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF SUCH PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS ASSIGNMENT AGREEMENT.
12. Notices. Any notices or other communications permitted or
required hereunder or under the Servicing Agreement or Sale Agreement shall be
in writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail,
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postage prepaid, and return receipt requested or transmitted by telex, telegraph
or telecopier and confirmed by a similar mailed writing, to:
(a) in the case of the Servicer,
Countrywide Home Loans Servicing LP
000 Xxxxxxxxxxx Xxx
Xxxx Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx, Xxxxxx Xxxx, Xxxx Xxxxxx and
Xxxx Xx
With a copy to:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
or such other address as may hereafter be furnished by the Servicer;
(b) in the case of Countrywide, (a)
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
With a copy to:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
or such other address as may hereafter be furnished by Countrywide;
(c) in the case of the Assignee,
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
11
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignee, and
(d) in the case of the Assignor,
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignor.
13. Counterparts. This Assignment Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument.
14. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Servicing Agreement
or the Trust Agreement, as applicable.
15. Third Party Beneficiary. The parties agree that the Trustee is
intended to be, and shall have the rights of, a third party beneficiary of this
Assignment Agreement.
[SIGNATURE PAGE FOLLOWS]
12
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement the day and year first above written.
XXXXXXX SACHS MORTGAGE
COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding
Corp., its General Partner
By: /s/ Xxxxx X. Xxxxx
----------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
----------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
COUNTRYWIDE HOME LOANS
SERVICING LP
BY: COUNTRYWIDE GP, INC., ITS
GENERAL PARTNER
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS, INC.
By: /s/ Xxxxxx Xxxxxx
----------------------------
Name: Xxxxxx Xxxxxx
Title: First Vice President
CHL Step 1 AAR
EXHIBIT 1
Mortgage Loan Schedule
----------------------
[On File with the Securities Administrator as provided by the Depositor]
1-1
EXHIBIT 2
Servicing Agreement
-------------------
[On File with the Depositor]
3-1
EXHIBIT 3
EXHIBIT B
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by [the Company] [Name of Subservicer] shall address, at
a minimum, the applicable criteria identified below as "Applicable Servicing Criteria":
------------------------------------------------------------------------------------------ ----------------------
Applicable
Servicing Criteria Servicing Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
-------------------- --------------------------------------------------------------------- ----------------------
General Servicing Considerations
-------------------- --------------------------------------------------------------------- ----------------------
Policies and procedures are instituted to monitor any performance or X
other triggers and events of default in accordance with the
1122(d)(1)(i) transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
If any material servicing activities are outsourced to third X
parties, policies and procedures are instituted to monitor the third
1122(d)(1)(ii) party's performance and compliance with such servicing activities.
-------------------- --------------------------------------------------------------------- ----------------------
Any requirements in the transaction agreements to maintain a back-up
1122(d)(1)(iii) servicer for the mortgage loans are maintained.
-------------------- --------------------------------------------------------------------- ----------------------
A fidelity bond and errors and omissions policy is in effect on the
party participating in the servicing function throughout the
reporting period in the amount of coverage required by and otherwise X
1122(d)(1)(iv) in accordance with the terms of the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Cash Collection and Administration
-------------------- --------------------------------------------------------------------- ----------------------
Payments on mortgage loans are deposited into the appropriate
custodial bank accounts and related bank clearing accounts no more X
than two business days following receipt, or such other number of
1122(d)(2)(i) days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Disbursements made via wire transfer on behalf of an obligor or to X
1122(d)(2)(ii) an investor are made only by authorized personnel.
-------------------- --------------------------------------------------------------------- ----------------------
Advances of funds or guarantees regarding collections, cash flows or
distributions, and any interest or other fees charged for such X
advances, are made, reviewed and approved as specified in the
1122(d)(2)(iii) transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
The related accounts for the transaction, such as cash reserve
accounts or accounts established as a form of overcollateralization, X
are separately maintained (e.g., with respect to commingling of
1122(d)(2)(iv) cash) as set forth in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Each custodial account is maintained at a federally insured
depository institution as set forth in the transaction agreements.
For purposes of this criterion, "federally insured depository X
institution" with respect to a foreign financial institution means a
foreign financial institution that meets the requirements of Rule
1122(d)(2)(v) 13k-1(b)(1) of the Securities Exchange Act.
-------------------- --------------------------------------------------------------------- ----------------------
Unissued checks are safeguarded so as to prevent unauthorized X
1122(d)(2)(vi) access.
3
------------------------------------------------------------------------------------------ ----------------------
Applicable
Servicing Criteria Servicing Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
-------------------- --------------------------------------------------------------------- ----------------------
-------------------- --------------------------------------------------------------------- ----------------------
Reconciliations are prepared on a monthly basis for all asset-backed
securities related bank accounts, including custodial accounts and
related bank clearing accounts. These reconciliations are (A)
mathematically accurate; (B) prepared within 30 calendar days after X
the bank statement cutoff date, or such other number of days
specified in the transaction agreements; (C) reviewed and approved
by someone other than the person who prepared the reconciliation;
and (D) contain explanations for reconciling items. These
reconciling items are resolved within 90 calendar days of their
original identification, or such other number of days specified in
1122(d)(2)(vii) the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Investor Remittances and Reporting
-------------------- --------------------------------------------------------------------- ----------------------
Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements. Specifically,
such reports (A) are prepared in accordance with timeframes and
other terms set forth in the transaction agreements; (B) provide X
information calculated in accordance with the terms specified in the
transaction agreements; (C) are filed with the Commission as
required by its rules and regulations; and (D) agree with investors'
or the trustee's records as to the total unpaid principal balance
1122(d)(3)(i) and number of mortgage loans serviced by the Servicer.
-------------------- --------------------------------------------------------------------- ----------------------
Amounts due to investors are allocated and remitted in accordance
with timeframes, distribution priority and other terms set forth in X
1122(d)(3)(ii) the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Disbursements made to an investor are posted within two business
days to the Servicer's investor records, or such other number of X
1122(d)(3)(iii) days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Amounts remitted to investors per the investor reports agree with
cancelled checks, or other form of payment, or custodial bank X
1122(d)(3)(iv) statements.
-------------------- --------------------------------------------------------------------- ----------------------
Pool Asset Administration
-------------------- --------------------------------------------------------------------- ----------------------
Collateral or security on mortgage loans is maintained as required
1122(d)(4)(i) by the transaction agreements or related mortgage loan documents. X
-------------------- --------------------------------------------------------------------- ----------------------
Mortgage loan and related documents are safeguarded as required by X
1122(d)(4)(ii) the transaction agreements
-------------------- --------------------------------------------------------------------- ----------------------
Any additions, removals or substitutions to the asset pool are
made, reviewed and approved in accordance with any conditions or X
1122(d)(4)(iii) requirements in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Payments on mortgage loans, including any payoffs, made in
accordance with the related mortgage loan documents are posted to
the Servicer's obligor records maintained no more than two business X
days after receipt, or such other number of days specified in the
transaction agreements, and allocated to principal, interest or
other items (e.g., escrow) in accordance with the related mortgage
1122(d)(4)(iv) loan documents.
-------------------- --------------------------------------------------------------------- ----------------------
The Servicer's records regarding the mortgage loans agree with the
Servicer's records with respect to an obligor's unpaid principal X
1122(d)(4)(v) balance.
4
------------------------------------------------------------------------------------------ ----------------------
Applicable
Servicing Criteria Servicing Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
-------------------- --------------------------------------------------------------------- ----------------------
-------------------- --------------------------------------------------------------------- ----------------------
Changes with respect to the terms or status of an obligor's mortgage
loans (e.g., loan modifications or re-agings) are made, reviewed and X
approved by authorized personnel in accordance with the transaction
1122(d)(4)(vi) agreements and related pool asset documents.
-------------------- --------------------------------------------------------------------- ----------------------
Loss mitigation or recovery actions (e.g., forbearance plans,
modifications and deeds in lieu of foreclosure, foreclosures and
repossessions, as applicable) are initiated, conducted and concluded X
in accordance with the timeframes or other requirements established
1122(d)(4)(vii) by the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Records documenting collection efforts are maintained during the
period a mortgage loan is delinquent in accordance with the
transaction agreements. Such records are maintained on at least a
monthly basis, or such other period specified in the transaction X
agreements, and describe the entity's activities in monitoring
delinquent mortgage loans including, for example, phone calls,
letters and payment rescheduling plans in cases where delinquency is
1122(d)(4)(viii) deemed temporary (e.g., illness or unemployment).
-------------------- --------------------------------------------------------------------- ----------------------
Adjustments to interest rates or rates of return for mortgage loans
with variable rates are computed based on the related mortgage loan X
1122(d)(4)(ix) documents.
-------------------- --------------------------------------------------------------------- ----------------------
Regarding any funds held in trust for an obligor (such as escrow
accounts): (A) such funds are analyzed, in accordance with the
obligor's mortgage loan documents, on at least an annual basis, or
such other period specified in the transaction agreements; (B) X
interest on such funds is paid, or credited, to obligors in
accordance with applicable mortgage loan documents and state laws;
and (C) such funds are returned to the obligor within 30 calendar
days of full repayment of the related mortgage loans, or such other
1122(d)(4)(x) number of days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Payments made on behalf of an obligor (such as tax or insurance
payments) are made on or before the related penalty or expiration
dates, as indicated on the appropriate bills or notices for such X
payments, provided that such support has been received by the
servicer at least 30 calendar days prior to these dates, or such
1122(d)(4)(xi) other number of days specified in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Any late payment penalties in connection with any payment to be made
on behalf of an obligor are paid from the servicer's funds and not X
charged to the obligor, unless the late payment was due to the
1122(d)(4)(xii) obligor's error or omission.
-------------------- --------------------------------------------------------------------- ----------------------
Disbursements made on behalf of an obligor are posted within two
business days to the obligor's records maintained by the servicer, X
or such other number of days specified in the transaction X
1122(d)(4)(xiii) agreements.
-------------------- --------------------------------------------------------------------- ----------------------
5
------------------------------------------------------------------------------------------ ----------------------
Applicable
Servicing Criteria Servicing Criteria
------------------------------------------------------------------------------------------ ----------------------
Reference Criteria
-------------------- --------------------------------------------------------------------- ----------------------
-------------------- --------------------------------------------------------------------- ----------------------
Delinquencies, charge-offs and uncollectible accounts are recognized X
1122(d)(4)(xiv) and recorded in accordance with the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
Any external enhancement or other support, identified in
Item 1114(a)(1) through (3) or Item 1115 of Regulation AB,
1122(d)(4)(xv) is maintained as set forth in the transaction agreements.
-------------------- --------------------------------------------------------------------- ----------------------
[NAME OF COMPANY] [NAME OF SUBSERVICER]
Date:
--------------------------------------------------
By:
----------------------------------------------------
Name:
--------------------------------------------------
Title:
-------------------------------------------------
6
