EXHIBIT 99.11
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
and
NATIONAL CITY MORTGAGE CO.
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 National City Mortgage
Co., (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 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 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) 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 provided further, 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."
(b) The second sentence in the second paragraph of Section 5.1
shall be deleted in its entirely 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."
(c) Section 6.4 shall be deleted in its entirety.
Section 6.5 shall be deleted in its entirety.
(d) 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
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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."
(e) 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;"
(f) Section 10.1 shall be amending 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."
(g) 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.
(h) 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."
(i) a new section, Section 12.12, will be added immediately
following Section 12.11 which shall read as follows:
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"Section 12.12 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, U.S. 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 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).
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
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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 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:
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(a) Prior Assignments; Pledges. Except for the sale to the
Assignee, the Assignor has not assigned or pledged any Mortgage Note or the
related Mortgage or any interest or participation therein.
(b) Releases. The Assignor has not satisfied, canceled or
subordinated in whole or in part, or rescinded any Mortgage, and the Assignor
has not released the related Mortgaged Property from the lien of any Mortgage,
in whole or in part, nor has the Assignor executed an instrument that would
effect any such release, cancellation, subordination, or rescission. The
Assignor has not released any Mortgagor, in whole or in part, except in
connection with an assumption agreement or other agreement approved by the
related federal insurer, to the extent such approval was required.
(c) Compliance with Applicable Laws. With respect to each Mortgage
Loan, any and all requirements of any federal, state or local law including,
without limitation, usury, truth-in-lending, real estate settlement
procedures, consumer credit protection, equal credit opportunity, predatory
and abusive lending or disclosure laws applicable to such Mortgage Loan,
including without limitation, any provisions relating to prepayment charges,
have been complied with.
(d) High Cost. No Mortgage Loan is categorized as "High Cost"
pursuant to the then-current Standard & Poor's Glossary for File Format for
LEVELS(R) Version 5.6(d), Appendix E, as revised from time to time and in
effect as of the Original Purchase Date. Furthermore, none of the Mortgage
Loans sold by the Seller are classified as (a) a "high cost mortgage" loan
under the Home Ownership and Equity Protection Act of 1994 or (b) a "high 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 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.
(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 any of the transactions contemplated
by this Assignment Agreement.
(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
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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) such 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 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.
(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 classified
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
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,
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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).
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 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.
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 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
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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 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.
"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.
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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
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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 is
intended to be, and shall have the rights of, a third party beneficiary of
this Assignment Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement the day and year first above written.
XXXXXXX XXXXX MORTGAGE
COMPANY
By: Xxxxxxx Sachs Real Estate Funding
Corp., its General Partner
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
----------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
NATIONAL CITY MORTGAGE CO.
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
Title: Assistant 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
Form of Exhibit K to the Servicing Agreement
--------------------------------------------
EXHIBIT K
Form of Annual Certification
----------------------------
I, ______________________, Vice President of National City Mortgage Co., (the
"Servicer"), certify to __________________, and its officers, directors,
agents and affiliates (in its role as ____________, the "____________"), and
with the knowledge and intent that they will rely upon this certification,
that:
(i) Based on my knowledge, the information relating to the Mortgage Loans and
the servicing thereof submitted by the Servicer to the ___________ which is
used in connection with preparation of the reports on Form 8-K and the annual
report on Form 10-K filed with the Securities and Exchange Commission with
respect to each transaction listed on the attached Exhibit 1, taken as a
whole, does not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements made, in light of the
circumstances under which such statements were made, not misleading as of the
date of this certification;
(ii) The servicing information required to be provided to the _____________ by
the Servicer under the Amended and Restated Flow Seller's Warranties and
Servicing Agreement, between National City Mortgage Co. and Xxxxxxx Xxxxx
Mortgage Company, dated as of August 1, 2003, as amended by Amendment No. 1,
dated July 1, 2004, between Xxxxxxx Sachs Mortgage Company and National City
Mortgage Co., (together the "Servicing Agreement") has been provided to the
______________;
(iii) I am responsible for reviewing the activities performed by the Servicer
under the Servicing Agreement and based upon the review required by the
relevant Servicing Agreement, and except as disclosed in the Annual Statement
of Compliance, the Annual Independent Public Accountant's Servicing Report and
all servicing reports, officer's certificates and other information relating
to the servicing of the Mortgage Loans submitted to the ___________, the
Servicer has, as of the date of this certification fulfilled its obligations
under the Servicing Agreement; and
(iv) I have disclosed to the ___________ all significant deficiencies relating
to the Servicer's compliance with the minimum servicing standards in
accordance with a review conducted in compliance with the Uniform Single
Attestation Program for Mortgage Bankers or similar standard as set forth in
the relevant Servicing Agreement.
(v) The Servicer shall indemnify and hold harmless the ___________ and its
officers, directors, agents and affiliates from and against any losses,
damages, penalties, fines, forfeitures, reasonable legal fees and related
costs, judgments and other costs and expenses arising out of or based upon a
breach by the Servicer or any of its officers, directors, agents or affiliates
of its obligations under this Certification or the negligence, bad faith or
willful misconduct of the Servicer in connection therewith. If the
indemnification provided for herein is unavailable or
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insufficient to hold harmless the ___________, then the Servicer agrees that
it shall contribute to the amount paid or payable by the ___________ as a
result of the losses, claims, damages or liabilities of the ___________ in
such proportion as is appropriate to reflect the relative fault of the
___________ on the one hand and the Servicer on the other in connection with a
breach of the Servicer's obligations under this Certification or the
Servicer's negligence, bad faith or willful misconduct in connection
therewith.
Any capitalized terms used but not defined herein shall have the
meanings assigned to such terms in the Servicing Agreement.
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IN WITNESS WHEREOF, I have hereunto signed my name and affixed the
seal of the Servicer.
Dated:
By:
---------------------------
Name:
Title
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