EXECUTION COPY
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Exhibit 99.5
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GSAA HOME EQUITY TRUST 2006-11
ASSET-BACKED CERTIFICATES
SERIES 2006-11
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
June 30, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment
Agreement") made this 30th day of June, 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 June 1, 2006 (the "Trust Agreement"), among GS Mortgage Securities
Corp., as depositor, Deutsche Bank National Trust Company, as trustee (in such
capacity, the "Trustee") and as a custodian, U.S. Bank National Association,
as a custodian, JPMorgan Chase Bank, National Association, as a custodian, and
Xxxxx Fargo Bank, N.A., 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 June
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 June 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 June 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) 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
participation agreement among the Company and Owner shall be entered into with
respect to such purchase money mortgage."
(b) 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:
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"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."
(c) 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."
(d) 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:
"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,
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Master Servicer or Depositor, and (4) any material litigation or governmental
proceedings involving the Company, any Subservicer or any Third Party
Originator."
(e) 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."
(f) 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, N.A., as master servicer under the Master
Servicing and Trust Agreement, dated as of June 1, 2006, among GS Mortgage
Securities Corp., Deutsche Bank National Trust Company, as trustee and as
custodian, U.S. Bank National Association, as a custodian, JPMorgan Chase
Bank, N.A., as a custodian, and Xxxxx fargo Bank, National Association, as a
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."
3. Accuracy of Servicing 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).
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(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 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.
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(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:
(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.
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(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
cost home," "covered," "high-cost," "high-risk home," or "predatory" loan
under any other applicable state, federal or local law.
(e) HOEPA. No Mortgage Loan is covered by the Home Ownership and
Equity Protection Act of 1994.
(f) 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.
(g) 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.
(h) 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.
(i) Prepayment Premiums. To the Assignor's knowledge, with respect
to any Mortgage Loan that contains a provision permitting imposition of a
Prepayment Premium prior to maturity: (a) prior to the Mortgage Loan's
origination, the borrower agreed to such premium in exchange for a monetary
benefit, including but not limited to a rate or fee reduction; (b) prior to
the Mortgage Loan's origination, the borrower was offered the option of
obtaining a Mortgage Loan that did not require payment of such a premium; (c)
the prepayment premium is adequately disclosed to the borrower pursuant to
applicable state and federal law; (d) no Mortgage Loan originated on or after
October 1, 2002 will impose a prepayment premium for a term in excess of three
years and any Mortgage Loans originated prior to such date will not impose
Prepayment Premiums in excess of five years; in each case unless the Mortgage
Loan was modified to reduce the prepayment period to no more than three years
from the date of the note and the borrower was notified in writing of such
reduction in prepayment period; and (e) notwithstanding any state or federal
law to the contrary, the Servicer shall not impose such Prepayment Premium in
any instance when the Mortgage Loan is accelerated or paid off in connection
with the workout of a delinquent mortgage or due to the borrower's default.
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(j) 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 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.
(k) Eligible Products. To the Assignor's knowledge, with respect
to each Mortgage Loan, the Mortgage Loan's originator offered the borrower
mortgage loan products offered by such Mortgage Loan's originator, or any
affiliate of such Mortgage Loan's originator, for which the borrower
qualified.
(l) Loan Limits. The original principal balance of each Loan Group
1 Mortgage Loan is within Xxxxxxx Mac's dollar amount limits for conforming
one- to four-family Mortgage Loans. No Group 1 Mortgage Loan contains a first
lien mortgage that, at origination, exceeded the applicable loan limits
specified below. The current limits are as follows:
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Number of Units Maximum Original Loan Amount of First Mortgage
----------------- ------------------------------ ------------------------------
Continental United States or Alaska, Guam, Hawaii or
Puerto Rico Virgin Islands
----------------- ------------------------------ ------------------------------
1 $417,000 $625,500
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2 $533,850 $800,775
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3 $645,300 $967,950
----------------- ------------------------------ ------------------------------
4 $801,950 $1,202,925
----------------- ------------------------------ ------------------------------
(m) Borrower's Ability to Repay. To the Assignor's knowledge, the
methodology used in underwriting the extension of credit for each Mortgage
Loan in the Trust employs objective mathematical principles which relate the
borrower's income, assets and liabilities to the proposed payment and such
underwriting methodology does not rely on the extent of the borrower's equity
in the collateral as the principal determining factor in approving such credit
extension. Such underwriting methodology confirmed that at the time of
origination (application/approval) the borrower had the reasonable ability to
make timely payments on the Mortgage Loan.
(n) Points and Fees. To the Assignor's knowledge, no borrower
under a Mortgage Loan in the Trust was charged "points and fees" in an amount
greater than (a) $1,000 or (b) 5% of the principal amount of such Mortgage
Loan, whichever is greater. For purposes of this representation, "points and
fees" (x) include origination, underwriting, broker and finder's fees and
charges that the lender imposed as a condition of making the Mortgage Loan,
whether they are paid to the lender or a third party; and (y) exclude bona
fide discount points, fees paid for actual services rendered in connection
with the origination of the mortgage (such as attorneys' fees, notaries fees
and fees paid for property appraisals, credit reports, surveys, title
examinations
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and extracts, flood and tax certifications, and home inspections); the cost of
mortgage insurance or credit-risk price adjustments; the costs of title,
hazard, and flood insurance policies; state and local transfer taxes or fees;
escrow deposits for the future payment of taxes and insurance premiums; and
other miscellaneous fees and charges that, in total, do not exceed 0.25
percent of the loan amount. All points, fees and charges (including finance
charges), whether or not financed, assessed, collected or to be collected in
connection with the origination and servicing of each Mortgage Loan, have been
disclosed in writing to the borrower in accordance with applicable state and
federal law and regulation.
(o) Manufactured Housing. To the Assignor's knowledge, with
respect to any Mortgage Loans that are on manufactured housing, such housing
will be the principal residence of the borrower upon origination of the
Mortgage Loan.
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(j)
with respect to, and to the extent of, representations and warranties made, as
to the matters covered in Section 7(j), 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 or 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
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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 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. Notwithstanding the
foregoing, a breach of any of the representations and warranties set forth in
paragraph (l) in Section 3.01 of the Sale Agreement, paragraphs (g), (k), (l),
(ee), (rr) or (ss) of Section 3.02 of the Sale Agreement or in clauses (c) -
(i) and (k) - (o) of Section 7 of this Assignment Agreement, in each case,
will be deemed automatically to materially and adversely affect the value of
such Mortgage Loan and the interests of the Trustee and Certificateholders in
such Mortgage Loan.
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. A breach of any of the representations and warranties set
forth in paragraph (l) in Section 3.01 of the Sale Agreement or in paragraphs
(g), (k), (l), (ee), (rr) or (ss) of Section 3.02 of the Sale Agreement, in
each case, will be deemed automatically to materially and adversely affect the
value of such Mortgage Loan and the interests of the Assignee in such Mortgage
Loan. 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 90 days from the date on which it is notified of the breach.
10
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.
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
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, 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, XX 00000
Attention: Xxxx Xxxxxxxx, Xxxxxx Xxxx, Xxxx Xxxxxx and
Xxxx Xx
With a copy to:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
or such other address as may hereafter be furnished by the Servicer;
(b) in the case of Countrywide,
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxx
12
With a copy to:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 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
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, (b)
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.
13
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.
14
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/ Xxxx Xxxxx
----------------------
Name: Xxxx 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 Xxxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxxx
Title: First Vice President
COUNTRYWIDE HOME LOANS, INC.
By: /S/Xxxxxx Xxxxxxxxx
----------------------------
Name: Xxxxxx Xxxxxxxxx
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]
2-1
