EXHIBIT 99.15
EXECUTION COPY
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
XXXXXX'X GATE RESIDENTIAL MORTGAGE TRUST,
as a Seller
and
PHH MORTGAGE CORPORATION
as a Seller and as Servicer
Dated as of
March 30, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment
Agreement") made this 30th day of March, 2006, among PHH Mortgage Corporation
(formerly known as Cendant Mortgage Corporation) (the "Servicer"), Xxxxxx'x
Gate Residential Mortgage Trust (formerly known as Cendant Residential
Mortgage Trust) ("Xxxxxx'x Gate" and, together with the Servicer, the "PHH
Parties"), GS Mortgage Securities Corp., as assignee (the "Assignee") and
Xxxxxxx Xxxxx Mortgage Company, as assignor (the "Assignor").
WHEREAS, the Assignor and the PHH Parties have entered into the
Amended and Restated Mortgage Loan Flow Purchase, Sale & Servicing Agreement,
dated as of December 1, 2005 (the "Sale and Servicing Agreement"), pursuant to
which the PHH Parties sold to the Assignor certain mortgage loans listed on
the mortgage loan schedule attached as an exhibit to the Sale and Servicing
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 Sale and Servicing
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 March 1, 2006 (the "Trust Agreement"), among GS Mortgage Securities
Corp., as depositor, U.S. Bank National Association, as trustee (the
"Trustee") and as a custodian, Deutsche Bank National Trust Company, as a
custodian and JPMorgan Chase Bank, National Association, as master servicer
(in such capacity, the "Master Servicer"), securities administrator and a
custodian, the Assignee will transfer the Mortgage Loans to the Trustee,
together with the Assignee's rights under the Sale and 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, the
Sale and 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), and the
Assignee hereby assumes all of the Assignor's obligations under the Sale and
Servicing Agreement, to the extent relating to the Mortgage Loans, from and
after the date hereof, and the Servicer hereby acknowledges such assignment
and assumption and hereby agrees to the release of the Assignor from any
obligations under the Sale and Servicing Agreement from and after the date
hereof, 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 date of the Sale
and Servicing Agreement.
(c) The PHH Parties and the Assignor shall have the right to
amend, modify or terminate the Sale and Servicing Agreement without the
joinder of the Assignee with respect to mortgage loans not conveyed to the
Assignee hereunder; 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 PHH Parties and the Assignor hereby amend
the Sale and Servicing Agreement as follows:
(a) the defined term "Repurchase Price" in Article I, Section 1.01
will be deleted in its entirety and replaced with the following:
"Repurchase Price": As to (a) any Defective Mortgage Loan required
to be repurchased hereunder with respect to which a breach occurred or (b) any
Mortgage Loan required to be repurchased pursuant to Section 3.04 and/or
Section 7.02, an amount equal to the Unpaid Principal Balance of such Mortgage
Loan at the time of repurchase; plus (2) interest on such Mortgage Loan at the
applicable Note Rate from the last date through which interest has been paid
and distributed to the Purchaser hereunder to the date of repurchase; plus (3)
with respect to any Mortgage Loan included in a Securitization Transaction,
damages incurred by the Purchaser or its assignee including the trust in any
securitization in connection with any violation by such Mortgage Loan of any
predatory or abusive lending law; minus (4) any amounts received in respect of
such Defective Mortgage Loan which are being held in the Collection Account
for future remittance.
3. Accuracy of Sale and Servicing Agreement. The PHH Parties and
the Assignor represent and warrant to the Assignee that (i) attached hereto as
Exhibit 2 is a true, accurate and complete copy of the Sale and Servicing
Agreement, (ii) the Sale and Servicing Agreement is in full force and effect
as of the date hereof, (iii) except as provided in Section 1 above, the Sale
and Servicing Agreement has not been amended or modified in any respect and
(iv) no notice of termination has been given to the Servicer under the Sale
and Servicing Agreement. The PHH Parties, in their respective capacities as
seller and/or servicer under the Sale and Servicing Agreement, further
represent and warrant that the representations and warranties contained in
Sections 3.01 and 3.02 of the Sale and Servicing Agreement are true and
correct as of the March 30, 2006 (the "Closing Date") and the representations
and warranties regarding the Mortgage Loans contained in Section 3.03 of the
Sale and Servicing Agreement were true and correct as of the Closing Date (as
such term is defined in the Sale and Servicing Agreement).
4. Recognition of Assignee. From and after the date hereof, 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 Sale and
Servicing Agreement the terms of which are incorporated herein by
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reference. It is the intention of the Assignor, the PHH Parties and Assignee
that the Sale and Servicing Agreement shall be binding upon and inure to the
benefit of the PHH Parties and the Assignee and their successors and assigns.
5. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor 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 or the PHH
Parties other than those contained in the Sale and Servicing Agreement, the
Sale and 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 Sale and Servicing 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 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 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 Sale and Servicing 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.
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(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:
(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 5.6(d), 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
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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) Bring Down. To the Assignor's knowledge, with respect to each
Mortgage Loan, no event has occurred from and after the closing date set forth
in such Sale and Servicing Agreement to the date hereof that would cause any
of the representations and warranties relating to such Mortgage Loan set forth
in Section 3.03 of the Sale and Servicing 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 8 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(g)
with respect to, and to the extent of, representations and warranties made, as
to the matters covered in Section 7(g), by the PHH Parties in the Sale and
Servicing Agreement (or any officer's certificate delivered pursuant thereto).
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. Repurchase of Mortgage Loans. Upon discovery or notice of any
breach by the Assignor of any representation, warranty or covenant under this
Assignment Agreement
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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 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 purchase such Mortgage Loan from the
Assignee at the Repurchase Price as defined in the Sale and Servicing
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 and Servicing Agreement, such cure or repurchase
must take place within sixty (60) 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 a PHH Party has breached a representation or warranty
under the Sale and Servicing Agreement that is substantially identical to, or
covers the same matters as, a representation or warranty breached by the
Assignor hereunder, the Assignee shall first proceed against such PHH Party to
cure such breach or purchase such mortgage loan from the Trust. If such PHH
Party 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 and Servicing Agreement) or purchase the Mortgage Loan, the Trustee
shall be entitled to enforce the obligations of the Assignor or the Servicer,
as applicable, 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 the Servicer has breached a representation and warranty and
is obligated to repurchase such Mortgage Loan under the Sale and Servicing
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 the Servicer to cure any breach or
repurchase such Mortgage Loan under the terms of the Sale and Servicing
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 and
Servicing Agreement, but only insofar as such Sale and Servicing Agreement
relates to such Mortgage Loan.
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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.
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 8, 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 3.03 of the Sale and
Servicing 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.
9. Continuing Effect. Except as contemplated hereby, the Sale and
Servicing Agreement shall remain in full force and effect in accordance with
its terms.
10. 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.
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11. Notices. Any notices or other communications permitted or
required hereunder or under the Sale and Servicing Agreement shall be in
writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail, 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 PHH Parties,
PHH Mortgage Corporation
0000 Xxxxxxxxxx Xxxx,
Xx. Xxxxxx, Xxx Xxxxxx 00000
Attention: Vice President of Servicing
or such other address as may hereafter be furnished by the PHH Parties;
(b) 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
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignee, and
(c) in the case of the Assignor,
Xxxxxxx Xxxxx 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.
12. 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.
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13. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Sale and
Servicing Agreement.
14. 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]
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IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement the day and year first above written.
XXXXXXX XXXXX MORTGAGE
COMPANY
By: Xxxxxxx Sachs Real Estate Funding
Corp., its General Partner
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Managing Director
GS MORTGAGE SECURITIES CORP.
By: /s/ MichellGill
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Name: Xxxxxxxx Xxxx
Title: Vice President
PHH MORTGAGE CORPORATION (formerly known as
CENDANT MORTGAGE CORPORATION)
By: /s/ Crissy Judge
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Name: Crissy Judge
Title: Assistant Vice President
XXXXXX'X GATE RESIDENTIAL MORTGAGE TRUST
(formerly known as CENDANT RESIDENTIAL
MORTGAGE TRUST)
By: PHH Mortgage Corporation, as
Administrator
By: /s/ Crissy Judge
---------------------------------------
Name: Crissy Judge
Title: Assistant Vice President
PHH Step 1 AAR
EXHIBIT 1
Mortgage Loan Schedule
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[On File with the Securities Administrator as provided by the Depositor]
1-1
EXHIBIT 2
Sale and Servicing Agreement
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[On File with the Depositor]
2-1
