Exhibit 10.2
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (the
"Agreement") made this 1st day of April, 2003, between Xxxxxxx Xxxxx Asset
Backed Securities Corp. a Delaware corporation (the "Assignee"), and Xxxxxxx
Sachs Mortgage Company, a New York limited partnership (the "Assignor") and
acknowledged by The Huntington National Bank, a national banking association
organized under the laws of the United States of America ("HNB" or the
"Servicer").
WHEREAS, Xxxxxxx Xxxxx Mortgage Company and HNB have entered
into a certain Purchase and Servicing Agreement dated as of February 28, 2003
(the "Purchase and Servicing Agreement"), pursuant to which HNB sold certain
retail motor vehicle loan and installment sale contracts listed on the
receivable schedule attached as an exhibit to the Purchase and Servicing
Agreement;
WHEREAS, the Assignee has agreed on certain terms and
conditions to purchase from the Assignor certain retail motor vehicle loan and
installment sale contracts (the "Receivables"), which Receivables are subject to
the provisions of the Purchase and Servicing Agreement and are listed on the
receivable schedule attached as Exhibit 1 hereto (the "Receivable Schedule");
WHEREAS, pursuant to a Sale and Servicing Agreement, dated as
of April 1, 2003 (the "Sale and Servicing Agreement"), among Xxxxxxx Sachs
Mortgage Company, as seller, Xxxxxxx Xxxxx Asset Backed Securities Corp., as
depositor, GS Auto Loan Trust 2003-1 (the "Trust"), the Servicer and JPMorgan
Chase Bank, as indenture trustee (the "Indenture Trustee"), the Assignee will
transfer the Receivables to the Trust, together with the Assignee's rights in
the Purchase and Servicing Agreement;
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 all
of its right, title and interest in and to the Receivables and the Purchase and
Servicing Agreement, to the extent relating to the Receivables (other than the
rights of the Assignor to indemnification thereunder), and the Assignee hereby
assumes all of the Assignor's obligations under the Purchase and Servicing
Agreement, to the extent relating to the Receivables, from and after the date
hereof, and HNB hereby acknowledges such assignment and assumption and hereby
agrees to the release of the Assignor from any obligations under the Purchase
and Servicing Agreement from and after the date hereof, to the extent relating
to the Receivables. Notwithstanding the foregoing, it is understood that the
Assignor is not released from liability for any breaches of the representations
and warranties made by it in Section 3.03 of the Purchase and Servicing
Agreement, and the Assignee is not undertaking any such liability hereunder.
(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 Receivables since the date of the Purchase
and Servicing Agreement.
(c) HNB hereby agrees to pay any GAP Amounts owed by
it under the Purchase and Servicing Agreement to whomever shall be responsible
for servicing the Receivables at any time on behalf of the Trust.
(d) HNB and the Assignor shall have the right to
amend, modify or terminate the Purchase and Servicing Agreement without the
joinder of the Assignee with respect to retail motor vehicle loan and
installment sale contracts not conveyed to the Assignee hereunder; provided,
however, that such amendment, modification or termination shall not affect or be
binding on the Assignee.
2. Accuracy of Purchase and Servicing Agreement.
HNB and the Assignor represent and warrant to the Assignee
that (a) attached hereto as Exhibit 2 is a true, accurate and complete copy of
the Purchase and Servicing Agreement and any amendments, supplements or other
modifications thereto, (b) the Purchase and Servicing Agreement is in full force
and effect as of the date hereof, (c) the Purchase and Servicing Agreement has
not been amended or modified in any respect except as set forth in Exhibit 2 and
(d) no notice of termination has been given to the Servicer under the Purchase
and Servicing Agreement.
3. Recognition of Purchaser.
From and after the date hereof, the Servicer shall note the
transfer of the Receivables to the Assignee in its books and records, shall
recognize the Assignee as the owner of the Receivables and shall service the
Receivables for the benefit of the Assignee pursuant to the Purchase and
Servicing Agreement, the terms of which are incorporated herein by reference. It
is the intention of the Assignor, HNB and the Assignee that the Purchase and
Servicing Agreement shall be binding upon and inure to the benefit of HNB and
the Assignee and their successors and permitted assigns.
4. 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
HNB other than those contained in the Purchase and Servicing Agreement or this
Agreement.
(b) Authority. The Assignee represents and warrants
that it is duly and legally authorized to enter into this Agreement and to
perform its obligations hereunder and under the Purchase and Servicing
Agreement.
(c) Enforceability. The Assignee represents and
warrants that this 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).
5. Representations and Warranties of the Assignor. The
Assignor hereby represents and warrants to the Assignee as follows:
(a) The Assignor has been duly organized and is
validly existing as a New York limited partnership in good standing under the
laws of the State of New York with full power and authority to enter into and
perform its obligations under the Purchase and Servicing Agreement and this
Agreement.
(b) This 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 by general equitable
principles (regardless of whether enforcement is sought in a proceeding in
equity or at law).
(c) The execution, delivery and performance by the
Assignor of this Agreement and the consummation of the transactions contemplated
thereby 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 thereof.
(d) The execution and delivery of this 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 Agreement,
nor the consummation by the Assignor of the transactions therein contemplated,
nor compliance by the Assignor with the provisions thereof, 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) 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 (i) with respect
to any of the transactions contemplated by this Agreement or (ii) 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 Agreement.
(f) Except for the sale to the Assignee, the Assignor
has not assigned or pledged any Receivable or any interest or participation
therein.
It is understood and agreed that the representations and
warranties set forth in this Section 5 shall inure to the benefit of the
Assignee and its permitted assigns notwithstanding any restrictive or qualified
endorsement or assignment. Upon the discovery by the Assignor or the Assignee
and its permitted assigns of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the other parties to this Agreement and in no event later than two (2)
Business Days from the date of such discovery.
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in this
Section 5, and no other affiliate of the Assignor has made any representations
or warranties of any kind to the Assignee.
6. Repurchase of Receivables.
Upon discovery or notice of any breach by the Assignor of the
representation and warranty set forth in Section 5(f) above and such breach
materially and adversely affects the value of any Receivable 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
Receivable 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 such breach is curable and the Assignor
shall have timely commenced such cure but notwithstanding its due and diligent
efforts, the breach shall not be capable of cure within sixty (60) days of the
earlier of either discovery by or notice to the Assignor of such breach, the
Assignor shall, upon receipt of written consent by the Assignee, have up to two
additional thirty (30) day period to effectuate the cure (up to an aggregate
total of 120 days) so long as it is acting in good faith to effectuate such
cure. If such cure is not effectuated after 120 days (or within sixty (60) or
ninety (90) days, if the applicable extension was not granted by the Assignee),
the Assignee may enforce the Assignor's obligation hereunder to purchase such
Receivable from the Assignee.
It is understood and agreed that the obligations of the
Assignor set forth in this Section 6 to repurchase a Receivable constitute the
sole remedies available to the Assignee and its permitted assigns respecting a
breach of the representations and warranties contained in Section 5(f).
7. Continuing Effect.
Except as contemplated hereby, the Purchase and Servicing
Agreement shall remain in full force and effect in accordance with its terms.
8. Governing Law.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
9. Notices.
Any notices or other communications permitted or required
hereunder or under the Purchase 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 HNB, The Huntington National Bank,
Huntington Center, 00 Xxxxx Xxxx Xxxxxx, Xxxxxxxx, XX 00000, Attention: Xxxxxxx
X. Xxxxxx or such address as may hereafter be furnished by the Seller; (b) in
the case of the Assignee, Xxxxxxx Sachs Asset Backed Securities Corp., 00 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Vice-President, 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: Vice-President , or such other address as may hereafter be
furnished by the Assignor.
10. Counterparts.
This 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.
11. Definitions.
Any capitalized term used but not defined in this Agreement
has the same meaning as in the Purchase and Servicing Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
XXXXXXX SACHS ASSET BACKED SECURITIES CORP.,
as Assignee
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Vice President
XXXXXXX XXXXX MORTGAGE COMPANY, as Assignor
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Vice President
Acknowledged and Agreed by:
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President
