EXHIBIT 99.13
EXECUTION COPY
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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
AMERICAN HOME MORTGAGE CORP.,
the Company
and
AMERICAN HOME MORTGAGE SERVICING, INC.,
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 American Home Mortgage
Servicing, Inc., a Maryland corporation (the "Servicer"), American Home
Mortgage Corp. (the "Company"), GS Mortgage Securities Corp., a Delaware
corporation (the "Assignee"), and Xxxxxxx Sachs Mortgage Company, a New York
limited partnership (the "Assignor").
WHEREAS, the Assignor, the Servicer and the Company have entered
into the Mortgage Loan Sale and Servicing Agreement, dated as of December 1,
2005 (the "Servicing Agreement") pursuant to which the Company sold to
Assignor certain Mortgage Loans (as defined below);
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
are listed on the mortgage loan schedule attached as Exhibit A 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, National Association, as master servicer (in such capacity,
the "Master Servicer") and securities administrator (in such capacity, the
"Securities Administrator"), the Assignee will transfer the Mortgage Loans to
the Trustee, together with the Assignee's rights 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 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) from and after the date hereof, and the Assignee hereby
assumes all of the Assignor's obligations under the 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 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
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Assignor's ownership interest in the Mortgage Loans since the date of
the applicable Servicing 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; 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, the Company 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 and savings and loan institutions in (a) the
States of Maryland, Minnesota or New York, (b) the state in which the Servicer
is located or (c) the State in which the Custodial Account is maintained, are
authorized or obligated by law or executive order to be closed."
(b) the definition of "Remittance Date" in Section 1 shall
be amended by deleting the definition in its entirety and
replacing it with the following:
"Remittance Date: The 18th day of any month (or, if such 18th day
is not a Business Day, the immediately preceding Business Day)."
(c) The definition of "Servicing Fee Rate" set forth in
Section 1 shall be amended by deleting the definition in its
entirety and replacing it with the following:
"Servicing Fee Rate: With respect to any Mortgage Loan, 0.25% per
annum."
(d) the second sentence of the first paragraph in Section
11.04 shall be amended to read as follows:
"Such Custodial Account shall be established with a commercial
bank, a savings bank or a savings and loan association (which may be a
depository affiliate of the Servicer) which meets the guidelines set forth by
Xxxxxx Mae or Xxxxxxx Mac and Standard & Poor's as an eligible depository
institution for custodial accounts."
(e) Section 11.12 shall be amended as follows:
(i) The first sentence of the third paragraph in Section
11.12 shall be deleted in its entirety.
(ii) The following paragraph shall be added immediately
following the second paragraph in Section 11.12:
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"The Servicer shall dispose of the REO Property within three (3)
years after title has been taken to such REO Property and not later than the
end of the third taxable year after the year of its acquisition unless (i) a
REMIC election has not been made with respect to the arrangement under which
the Mortgage Loans and the REO Property are held and (ii) the Servicer
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 (3) years is permitted under the foregoing
sentence and is necessary to sell any REO Property (i) the Servicer shall
report monthly to the Owner as to the progress being made in selling such REO
Property, (ii) the Servicer shall obtain an extension from the Internal
Revenue Service and (iii) if, with 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 Servicer and Owner shall be entered into
with respect to such purchase money mortgage."
(f) the second paragraph of Section 11.14 shall be deleted in its
entirety and replaced with the following:
"With respect to any remittance received by the Purchaser after the
Business Day on which such payment was due, the Servicer shall pay to the
Purchaser interest on any such late payment at an annual rate equal to the
Prime Rate, adjusted as of the date of each change, plus three percent (3%),
but in no event greater than the maximum amount permitted by applicable law.
Such interest shall be paid by the Servicer to the Purchaser on the date such
late payment is made and shall cover the period commencing with the Business
Day on which such payment was due and ending with the Business Day on which
such payment is made, both inclusive. The payment by the Servicer of any such
interest shall not be deemed an extension of time for payment or a waiver of
any Event of Default by the Servicer."
(g) Section 13.01(b) shall be deleted in its entirety and replaced
with the following:
"(b) failure by the Servicer to duly observe or perform, in any
material respect, any other covenants, obligations or agreements of the
Servicer as set forth in this Agreement which failure continues unremedied for
a period of sixty (60) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Purchaser (or, in the case of (i) the officer's certificate
required under Subsection 11.19 and Subsection 34.04, (ii) the annual
independent public accountants' servicing report required under Subsection
11.20 and Subsection 34.05 or (iii) the certification required under Section
15 in the form of Exhibit 16, five (5) days after the date on which such
failure to perform occurred);"
(h) the words "March 15" in the third paragraph of Section 15(d)
shall be replaced with the words "March 10".
(i) a new section, Section 35, will be added immediately following
Section 34 which shall read as follows:
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"SECTION 35. Third Party Beneficiary.
Xxxxx Fargo Bank, National Association, as master servicer and
securities administrator under the Master Servicing and Trust Agreement, dated
as of June 1, 2006, among GS Mortgage Securities Corp., Deutsche Bank National
Trust Company and JPMorgan Chase Bank, National Association and Xxxxx Fargo
Bank, National Association, shall be considered a third party beneficiary to
this Agreement entitled to all of the rights and benefits accruing to it as if
it were a direct party to this Agreement."
3. Accuracy of Servicing Agreement.
The Servicer and the Assignor represent and warrant to the
Assignee that (i) attached hereto as Exhibit B is a true, accurate and
complete copy of the Servicing Agreement, (ii) the Servicing Agreement is in
full force and effect as of the date hereof, (iii) the 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 Servicing Agreement. The Servicer, in
its capacity as seller and/or servicer under the Servicing Agreement, further
represents and warrants that the representations and warranties contained in
Section 7.02(A) and (B), as applicable, of the Servicing Agreement are true
and correct as of the Closing Date (as such term is defined in the Servicing
Agreement), and the Seller represents and warrants that the representations
and warranties regarding the Mortgage Loans contained in Section 7.01 of the
Servicing Agreement were true and correct as of the Closing Date.
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 or in the Servicing Agreement to the contrary, shall service
all of the Mortgage Loans for the benefit of the Assignee pursuant to the
terms of the Servicing Agreement the terms of which are incorporated herein by
reference. It is the intention of the Assignor, the Servicer, the Company and
the Assignee that the Servicing Agreement shall be binding upon and inure to
the benefit of the Servicer 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
Servicer other than those contained in 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.
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(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 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.
(d) Authorization; No Breach. The execution and delivery of this
Assignment Agreement has been duly authorized by all necessary 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 (i)
with respect to any of the transactions contemplated by this Assignment
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
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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 Company 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
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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) the Mortgage Loan provides some
benefit to the borrower (e.g., a rate or fee reduction) in exchange for
accepting such premium; (b) the Mortgage Loan's originator had a written
policy of offering the borrower or requiring third-party brokers to offer the
borrower the option of obtaining a Mortgage Loan that did not require payment
of such a premium; (c) the Prepayment Premium was adequately disclosed to the
borrower pursuant to applicable state and federal law; (d) no subprime
mortgage loan originated on or after October 1, 2002 will provide for
prepayment premiums for a term in excess of three (3) years and any subprime
mortgage loans originated prior to such date, and any non-subprime mortgage
loans, will not provide for Prepayment Premiums for a term in excess of five
(5) years; in each case unless the Mortgage Loan was modified to reduce the
prepayment period to no more than three (3) years from the date of the note
and the borrower was notified in writing of such reduction in prepayment
period; and (e) sucy Prepayment Premium shall not be imposed in any instance
where the Mortgage Loan is accelerated or paid off in connection with the
workout of a delinquent mortgage or due to the borrower's default,
notwithstanding that the terms of the Mortgage Loan or state or federal law
might permit the imposition of such Prepayment Premium.
(j) 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 the Servicing Agreement to the date hereof that would cause any of the
representations and warranties relating to such Mortgage Loan set forth in
Section 7.01 of the 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.
(k) Eligible Products. To the Assignor's knowledge, with respect
to each Mortgage Loan, the borrower was not encouraged or required to select a
mortgage loan product offered by the Mortgage Loan's originator which is a
higher cost product designed for less creditworthy borrowers, taking into
account such facts as, without limitation, the Mortgage Loan's requirements
and the borrower's credit history, income, assets and liabilities. For a
borrower who seeks financing through an originator's higher-priced subprime
lending channel, the borrower should be directed towards or offered the
mortgage loan originator's standard mortgage line if the borrower is able to
qualify for one of the standard products.
(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 Lien Maximum Original Loan Amount of Subordinate
Mortgage Lien Mortgage
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Continental United Alaska, Guam, Continental United Alaska, Guam, Hawaii
States or Puerto Rico Hawaii or States or Puerto Rico or Virgin Islands
Virgin Islands
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1 $417,000 $625,500 $208,500 $312,750
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2 $533,850 $800,775 $208,500 $312,750
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3 $645,300 $967,950 $208,500 $312,750
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4 $801,950 $1,202,925 $208,500 $312,750
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(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 did not rely on the extent of the borrower's equity in the
collateral as the principal determining factor in approving such extension of
credit. The methodology employed objective criteria that related such facts
as, without limitation, the borrower's credit history, income, assets or
liabilities, to the proposed mortgage payment and, based on such methodology,
the Mortgage Loan's originator made a reasonable determination that at the
time of origination the borrower had the 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 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, upon the
origination of each such Mortgage Loan, the manufactured housing unit either:
(i) will be the principal residence of the borrower or (ii) will be classifed
as real property under applicable state law.
It is understood and agreed that the representations and
warranties set forth in Sections 6 and 7 shall survive delivery of the
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
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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 Servicer in the 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. Representations and Warranties of the Servicer. The Servicer
hereby represents and warrants 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 applicable Transfer Date 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 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 ninety (90) 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 Servicing Agreement) or,
in limited circumstances (as set forth below), substitute such mortgage loan
for a Substitute Mortgage Loan (as defined below).
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.
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In the event the Servicer has breached a representation or
warranty under the Servicing Agreement that materially and adversely affects
the value of any Mortgage Loan, or the interest of the Assignee therein, and
thus is obligated to repurchase such Mortgage Loan under the Servicing
Agreement, and such breach 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 the Servicer to cure such breach or
purchase such Mortgage Loan from the Trust. If the Servicer 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 Servicing
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 the Servicer has breached a representation and warranty and
is obligated to repurchase such Mortgage Loan under the 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 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 Servicing Agreement, but only
insofar as such Servicing 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 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- or adjustable-rate with same periodic
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rate cap, lifetime rate cap, and index); and (v) comply with each
representation and warranty set forth in Section 7.01 of the 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.
10. Continuing Effect.
Except as contemplated hereby, the Servicing Agreement shall
remain in full force and effect in accordance with its 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 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,
American Home Mortgage Servicing, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxxxxx, Executive Vice President
Tel.: (000) 000-0000
Fax: (000) 000-0000
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with a copy to,
American Home Mortgage Corp.
000 Xxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, General Counsel
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Servicer;
(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,
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:
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
12
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]
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IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement the day and year first above written.
XXXXXXX SACHS MORTGAGE COMPANY,
a New York limited partnership
By: Xxxxxxx Xxxxx Real Estate Funding Corp.,
its general partner
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
------------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
AMERICAN HOME MORTGAGE SERVICING, INC.
By: /s/ Xxxx X. Xxxx
------------------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
AMERICAN HOME MORTGAGE CORP.
By: /s/ Xxxx X. Xxxx
------------------------------------------
Name: Xxxx X. Xxxx
Title: Executive Vice President
American Home Step 1 AAR
Exhibit A
---------
Mortgage Loan Schedule
----------------------
[On File with the Securities Administrator as provided by the Depositor]
Exhibit B
---------
Mortgage Loan Sale and Servicing Agreement
------------------------------------------
[On File with the Depositor]
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