GSAA HOME EQUITY TRUST 2007-8 ASSET-BACKED CERTIFICATES SERIES 2007-8 ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GOLDMAN SACHS MORTGAGE COMPANY, as Assignor GS MORTGAGE SECURITIES CORP., as Assignee and NATIONAL CITY MORTGAGE CO. as...
Exhibit
99.9
Execution
Copy
ASSET-BACKED
CERTIFICATES
SERIES
2007-8
among
XXXXXXX
XXXXX MORTGAGE COMPANY,
as
Assignor
GS
MORTGAGE SECURITIES CORP.,
as
Assignee
and
NATIONAL
CITY MORTGAGE CO.
as
Servicer
Dated
as of
July
30, 2007
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment Agreement”) made
this 30th day of July, 2007, among National City Mortgage Co., (“NatCity”
or the “Servicer”), 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 Second Amended and Restated
Flow Seller’s Warranties and Servicing Agreement, dated as of January 1, 2006
(as amended, the “Servicing Agreement”) pursuant to which the Servicer
sold certain mortgage loans listed on the mortgage loan schedule attached as
an
exhibit to the Servicing Agreement;
WHEREAS,
the Assignee has agreed on certain terms and conditions to purchase from the
Assignor certain of the mortgage loans (the “Mortgage Loans”), which are
subject to the provisions of the Servicing Agreement and are listed on the
mortgage loan schedule attached as Exhibit 1 hereto (the “Mortgage
Loan Schedule”); and
WHEREAS,
pursuant to a Master Servicing and Trust Agreement, dated as of July 1, 2007
(the “Trust Agreement”), among GS Mortgage Securities Corp., as
depositor, Citibank, N.A., as trustee (in such capacity, the “Trustee”),
U.S. Bank National Association, as a custodian, The Bank of New York Trust
Company, National Association, as a custodian, Deutsche Bank National Trust
Company, as a custodian and Xxxxx Fargo Bank, National Association, as master
servicer (in such capacity, the “Master Servicer”), securities
administrator and as a custodian, 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
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. 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 Assignor’s ownership
interest in the Mortgage Loans since the date of the Servicing
Agreement.
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(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 and the Assignor hereby amend the Servicing
Agreement as follows:
(a) a
new
definition of “Privacy Laws” will be added in the appropriate alphabetical order
which shall read as follows:
“Privacy
Laws: Title V of the Xxxxx-Xxxxx-Xxxxxx Act of 1999, as amended, and all
applicable regulations promulgated thereunder.”
(b) Section
4.17, paragraph three, shall be amended by deleting “.” at the end of such
paragraph 3, and replacing it with the following language:
“,
and
providedfurther, that if the Company is unable to sell such REO
Property within three years of acquisition, the Company shall obtain an
extension from the Internal Revenue Service.”
(c) Section
4.21 shall be deleted and replaced as follows:
“The
Company, in its capacity as servicer for each Mortgage Loan, agrees to fully
furnish, in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (e.g., favorable and unfavorable)
on its borrower credit files to Equifax, Experian and Trans Union Credit
Information Company (three of the credit repositories), on a monthly basis.
The
Company will transmit full-file credit reporting data for each Mortgage Loan
pursuant to Xxxxxx Xxx Guide Announcement 95-19 and for each Mortgage Loan,
Company agrees it shall report one of the following statuses each
month as follows: new origination, current, delinquent (30-, 60-, 90-days,
etc.), foreclosed, or charged-off.”
(d) a
new
section, Section 4.22, will be added immediately following Section 4.21 which
shall read as follows:
“Section
4.22. Privacy Laws. The Servicer shall comply with
all provisions of the Privacy Laws relating to the Mortgage Loans, the related
borrowers and any “nonpublic personal information” (as defined in the Privacy
Laws) received by the Servicer incidental to the performance of its obligations
under this Agreement, including, maintaining adequate information security
procedures to protect such nonpublic personal information and providing all
privacy notices required by the Privacy Laws.”
(e) a
new
section, Section 4.23, will be added immediately following Section 4.22 which
shall read as follows:
“Section
4.23. Prepayment Premiums. With respect to any
Group III Mortgage Loan that contains a provision permitting imposition of
a
Prepayment Premium prior to maturity, the Servicer shall waive such Prepayment
Premium if such Mortgage Loan is accelerated or paid-off in connection with
the
workout of a delinquent Mortgage Loan or due to the related Mortgagor’s default,
notwithstanding that the terms of such Mortgage Loan or federal or state law
might permit the imposition of such Prepayment Premium.”
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(f) The
second sentence in the second paragraph of Section 5.1 shall be deleted it
its
entirety and be replaced with the following:
“Such
interest shall be deposited in the Custodial Account by the Company on the
date
such late payment is made and shall cover the period commencing with the day
on
which such payment was due and ending on the Business Day on which such payment
is made, both inclusive.
(g) Section
6.4 shall be deleted in its entirety.
(h) Section
6.5 shall be deleted in its entirety.
(i) Section
8.1 shall be deleted in its entirety and be replaced with the
following:
“The
Company shall indemnify the Purchaser and the applicable master servicer and
hold it harmless against any and all claims, losses, damages, penalties, fines,
forfeitures, reasonable and necessary legal fees and related costs, judgments,
and any other costs, fees and expenses that the Purchaser or master servicer
may
sustain in any way related to the failure of the Company to perform its duties
and service the Mortgage Loans in strict compliance with the terms of this
Agreement. The Company immediately shall notify the Purchaser or
master servicer, as applicable, if a claim is made by a third party with respect
to this Agreement or the Mortgage Loans, assume (with the prior written consent
of the Purchaser or master servicer as applicable) the defense of any such
claim
and pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be entered
against it or the Purchaser or master servicer, as applicable, in
respect of such claim. The Company shall follow any written
instructions received from the Purchaser or master servicer, as applicable,
in
connection with such claim. The Purchaser or master servicer, as
applicable, promptly shall reimburse the Company for all costs, fees or expenses
advanced by it pursuant to this paragraph except when the claim in any way
results from, relates to or arises out of any liability, obligation, act or
omission of the Company, including without limitation, the Company’s
indemnification obligation under Section 3.3 and this Section 8.1, any
repurchase obligation of the Company hereunder including Sections 2.3, 3.3
and
6.2, or the failure of the Company to service and administer the Mortgage Loans
and otherwise perform its obligations hereunder in strict compliance with the
terms of this Agreement.”
(j) Section
9.1(c) shall be amended by adding the following:
“which
shall include, for so long as the Mortgage Loans are being master serviced
by a
master servicer in a securitization transaction, by March 15th of each
year (or
if March 15th
is not a Business Day, the immediately preceding Business Day), or at any other
time upon thirty (30) days written request, an officer of the Servicer shall
execute and deliver an Officer’s Certificate to the master servicer, the trustee
and the depositor for the benefit of such party, and such party’s officers,
directors and affiliates, substantially in the form attached hereto as Exhibit
K;”
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(k) Section
10.1 shall be amended in the following manner:
(1) The
word “or” in Section 10.1(i) shall be deleted;
(2) The
word “or” shall be added to the end of Section 10.1(ii); and
(3) A
Section 10.1(iii) shall be added after Section 10.1(ii) which shall read as
follows:
“any
failure by the Company to duly perform in any material respect any of the
requirements of the Company as set forth in Section 13.4 and 13.5 hereto upon
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given the Company.”
(l) Section
11.3 shall be amended by deleting the words “upon ten (10) Business Days’ prior”
from the first sentence of the first paragraph of such Section.
(m) The
third
paragraph of Section 12.1 shall be deleted in its entirety and replaced with
the
following:
“The
Company shall deliver to the successor servicer the funds in the Custodial
Account and Escrow Account and 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 with
respect to such accounts within two Business Days after receiving notice of
the
appointment of such successor servicer. The Company shall deliver promptly
to
the successor servicer all Mortgage Files and related documents and statements
held by it hereunder 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 within thirty calendar days after receiving
notice of the appointment of such successor servicer.”
(n) a
new
section, Section 12.12, will be added immediately following Section 12.11 which
shall read as follows:
“Section
12.12 Third Party Beneficiary.
Xxxxx
Fargo Bank, National Association, as master servicer, securities administrator
and as a custodian under the Master Servicing and Trust Agreement, dated as
of
July 1, 2007, among GS Mortgage Securities Corp., Deutsche Bank National Trust
Company, U.S. Bank National Association, The Bank of New York Trust Company,
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.”
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(g) Exhibit
K shall be deleted in its entirety and be replaced with a new “Exhibit K” which
shall be as set forth in Exhibit 3 attached to this Assignment
Agreement.
(h) The
first paragraph of Section 4.4 shall be deleted in its entirety and replaced
with the following:
“The
Company shall segregate and hold all funds collected and received pursuant
to a
Mortgage Loan separate and apart from any of its own funds and general assets
and shall establish and maintain one or more Custodial Accounts, in the form
of
time deposit or demand accounts, titled “National City Mortgage Co., for the
benefit of the Purchaser of Residential Mortgage Loans serviced under a Flow
Seller’s Warranties and Servicing Agreement, dated as of May 1, 2003”, or as
otherwise directed in writing by the Purchaser or its assigns after the Closing
Date in connection with any Whole Loan Transfer or Securitization
Transaction. The Custodial Account shall be established with a
Qualified Depository. Upon request of the Purchaser and within ten
(10) days thereof, the Company shall provide the Purchaser with written
confirmation of the existence of such Custodial Account. Any funds
deposited in the Custodial Account shall at all times be insured to the fullest
extent allowed by Applicable Law. Funds deposited in the Custodial
Account may be drawn on by the Company in accordance with Section
4.5. If the depository in which the Custodial Account is held ceases
to be a Qualified Depository, the Company shall transfer the Custodial Account
within thirty (30) days to a substitute Qualified Depository.
With
respect to each Securitization Transaction, the Servicer shall establish a
separate Custodial Account for the related securitization and deposit all
amounts that have been or are subsequently received with respect to the Mortgage
Loans included in such Securitization Transaction into the Custodial Account
created for the securitization on the date of the Securitization Transfer,
or as
soon as possible thereafter (but not to exceed 48 hours after such
date). All funds held in such separate Custodial Account shall be for
the benefit of the trust created in connection with such Securitization
Transaction.”
(i) The
definition of “Qualified Depository” set forth in Article I shall be deleted in
its entirety and replaced with the following:
“Qualified
Depository: A depository the accounts of which are insured by the FDIC and
is otherwise acceptable to the Rating Agencies. For the avoidance of
doubt, a depository will be acceptable to Standard & Poor’s if its
short-term unsecured debt obligations are rated “A-2” or above or, if such
depository’s short-term unsecured debt obligations are not rated, its long-term
unsecured debt obligations are rated “BBB+” or above by Standard &
Poor’s.”
3. Accuracy
of Servicing Agreement. The Servicer and the Assignor represent
and warrant to the Assignee that (i) attached hereto as Exhibit 2 is a
true, accurate and complete copy of the Servicing Agreement, (ii) the
Servicing Agreement is in full force and effect as of the date hereof, (iii)
except as provided in Section 2 above, 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 3.1 of the Servicing Agreement are true and correct as of the Closing
Date (as such term is defined in the Servicing Agreement).
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4. Recognition
of Assignee. From and after the date hereof, the Servicer shall
note the transfer of the Mortgage Loans to the Assignee in its books and
records, shall recognize the Assignee as the owner of the Mortgage Loans and,
notwithstanding anything herein to the contrary, shall service all of the
Mortgage Loans for the benefit of the Assignee pursuant to the Servicing
Agreement the terms of which are incorporated herein by reference. It
is the intention of the Assignor, Servicer and 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.
(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.
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(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.
(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.
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(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® Version 6.0, Appendix E, as revised from time to time and in
effect as of the Original Purchase Date. Furthermore, none of the
Mortgage Loans sold by the Seller are classified as (a) a “high cost mortgage”
loan under the Home Ownership and Equity Protection Act of 1994 or (b) a “high
cost home,” “covered,” “high-cost,” “high-risk home,” or “predatory” loan under
any other applicable state, federal or local law.
(e) Georgia
Fair Lending Act. No Mortgage Loan is secured by a property in
the state of Georgia and originated between October 1, 2002 and
March 7, 2003.
(f) Credit
Reporting. The Assignor will fully furnish, in accordance with
the Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (i.e., favorable and unfavorable) on Mortgagor credit
files
to Equifax, Experian and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis.
(g) Arbitration. With
respect to any Mortgage Loan originated on or after August 1, 2004, neither
the
related Mortgage nor the related Mortgage Note requires the Mortgagor to submit
to arbitration to resolve any dispute arising out of or relating in any way
to
any of the transactions contemplated by this Assignment Agreement.
(h) Bring
Down. To the Assignor’s knowledge, with respect to each Mortgage
Loan, no event has occurred from and after the closing date set forth in such
Servicing Agreement to the date hereof that would cause any of the
representations and warranties relating to such Mortgage Loan set forth in
Section 3.2 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.
It
is
understood and agreed that the representations and warranties set forth in
Sections 6 and 7 shall survive delivery of the respective mortgage loan
documents to the Assignee or its designee and shall inure to the benefit of
the
Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. Upon the discovery by the Assignor or the
Assignee and its assigns of a breach of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other parties to this Assignment Agreement, and in no event later than
two (2) Business Days from the date of such discovery. It is
understood and agreed that the obligations of the Assignor set forth in Section
8 to repurchase or, in limited circumstances, substitute a Mortgage Loan
constitute the sole remedies available to the Assignee and its assigns on their
behalf respecting a breach of the representations and warranties contained
in
Sections 6 and 7. It is further understood and agreed that, except as
specifically set forth in Sections 6 and 7, the Assignor shall be deemed not
to
have made the representations and warranties in Section 7(h) with respect to,
and to the extent of, representations and warranties made, as to the matters
covered in Section 7(h), by the Servicer in the Servicing Agreement (or any
officer’s certificate delivered pursuant thereto).
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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
to
qualify as a REMIC or (b) result in the imposition of a tax upon the REMIC
(including, but not limited to, the tax on prohibited transactions as defined
in
Section 860F(a)(2) of the Code, the tax on contributions to a REMIC set forth
in
Section 860G(d) of the Code and the tax on “net income from foreclosure
property” as set forth in Section 860G(c) of the Code).
9. Repurchase
of Mortgage Loans. (a) To the extent that NatCity is
required under the Sale Agreement or any related agreement to which NatCity
and
Assignor are parties to repurchase any Mortgage Loan on account of an Early
Payment Default, the Assignee shall be entitled as a result of the assignments
hereunder to enforce such obligation directly against NatCity as required by
and
in accordance with the Sale Agreement or such related agreement, as
applicable. For purposes of this Section, “Early Payment Default”
shall mean any provision of the Sale Agreement or any related agreement to
which
NatCity and Assignor are parties that is designated as an “early payment
default” provision of otherwise provides for the repurchase of any Mortgage Loan
in the event of a default in the first (of such other number as may be specified
in such provision) scheduled payment due under such Mortgage Loan after the
closing or other date specified in such agreement.
(b) 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 sixty (60) days from the date on which it is notified of the
breach, the Assignee may enforce the Assignor’s obligation hereunder to purchase
such Mortgage Loan from the Assignee at the Repurchase Price as defined in
the
Servicing Agreement or, in limited circumstances (as set forth below),
substitute such mortgage loan for a Substitute Mortgage Loan (as defined
below). Notwithstanding the foregoing, however, if such breach is a
Qualification Defect as defined in the Servicing Agreement, such cure or
repurchase must take place within seventy-five (75) days of discovery of such
Qualification Defect.
The
Assignor shall have the option, but is not obligated, to substitute a Substitute
Mortgage Loan for a Mortgage Loan, rather than repurchase the Mortgage Loan
as
provided above, by removing such Mortgage Loan and substituting in its place
a
Substitute Mortgage Loan or Loans and providing the Substitution Adjustment
Amount, 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 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-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 3.2 of the Servicing Agreement.
11
“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 their respective
terms.
11. Governing
Law.
THIS
ASSIGNMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF).
EACH
PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND
ALL
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON,
OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS ASSIGNMENT AGREEMENT, OR
ANY
OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS
OF SUCH PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER
INTO THIS ASSIGNMENT AGREEMENT.
12. Notices. Any
notices or other communications permitted or required hereunder or under the
Servicing Agreement 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,
National
City Mortgage Co.
0000
Xxxxxxx Xxxxx
Xxxxxxxxxx,
XX 00000
Attn: Xxxx
Xxxx Xxxxxxxx
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
12
or
such
other address as may hereafter be furnished by the Assignee, and
(c) in
the
case of the Assignor,
Xxxxxxx
Xxxxx Mortgage Company
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxxx
Xxxxxxx
Tel.: (000)
000-0000
Fax: (000)
000-0000
or
such
other address as may hereafter be furnished by the Assignor.
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.
15. Third
Party Beneficiary. The parties agree that the Trustee and Master
Servicer are intended to be, and shall have the rights of, a third party
beneficiary of this Assignment Agreement.
[SIGNATURE
PAGE FOLLOWS]
13
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
the
day and year first above written.
|
XXXXXXX
XXXXX MORTGAGE
COMPANY
By: Xxxxxxx
Sachs Real Estate Funding
Corp.,
its General
Partner
By: /s/
Xxxxx
Xxxxxxx
Name:
Xxxxx
Xxxxxxx
Title:
Vice President
|
|
|
GS
MORTGAGE SECURITIES CORP.
By: /s/
Xxxx X.
Xxxxx
Name:
Xxxx
X.
Xxxxx
Title:
Vice President
|
|
|
NATIONAL
CITY MORTGAGE CO.
By: /s/
Xxxx Xxxx
Xxxxxxxx
Name:
Xxxx
Xxxx
Xxxxxxxx Title:
Vice President |
NatCity
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
EXHIBIT
3
Exhibit
K to the Servicing Agreement
EXHIBIT
K
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by [the Company] [Name of Subservicer]
shall address, at a minimum, the criteria identified as below as “Applicable
Servicing Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
3-1
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
3-2
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
3-3
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
3-4
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
|
[NAME
OF INTERIM SERVICER] [SUBSERVICER]
|
|
|
Date:
______________________________________
|
By:
Name:
Title
3-5
