Exhibit 99.14
EXECUTION COPY
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GSAA HOME EQUITY TRUST 2006-16
ASSET-BACKED CERTIFICATES
SERIES 2006-16
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Servicer
Dated as of
September 28, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment
Agreement") made this 28th day of September, 2006, among Xxxxx Fargo Bank,
National Association, a national banking association ("Xxxxx Fargo" or the
"Servicer"), GS Mortgage Securities Corp., a Delaware corporation (the
"Assignee"), and Xxxxxxx Xxxxx Mortgage Company, a New York limited partnership
(the "Assignor" or "GSMC").
WHEREAS, the Assignor and the Servicer have entered into (i) the
Second Amended and Restated Master Seller's Warranties and Servicing Agreement,
dated as of November 1, 2005, (ii) an Assignment and Conveyance Agreement
(06-W31), dated as of May 19, 2006, (iii) an Assignment and Conveyance Agreement
(06-W51), dated as of May 30, 2006, (iv) an Assignment and Conveyance Agreement
(06-W62), dated as of August 15, 2006 and (v) the Assignment and Conveyance
Agreement (06-W74), dated as of August 30, 2006 (collectively, the "Servicing
Agreement") pursuant to which the Servicer sold certain Mortgage Loans (as
defined below) to the Assignor;
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 September 1, 2006 (the "Trust Agreement"), among GS Mortgage Securities
Corp., as depositor, Deutsche Bank National Trust Company, as trustee (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"), 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, 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
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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 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 and the Assignor hereby amend the
Servicing Agreement as follows:
(a) The second sentence of the first paragraph of Section 4.2 shall
be deleted in its entirety and replaced with the following:
"In the event that any payment due under any Mortgage Loan is not
postponed pursuant to Section 4.1 and remains delinquent for a period of ninety
(90) days or any other default continues for a period of ninety (90) days beyond
the expiration of any grace or cure period, the Company shall commence
foreclosure proceedings."
(b) The second paragraph of Section 4.4 shall be deleted in its
entirety and replaced with the following:
"The Company shall deposit in the Custodial Account within two (2)
Business Days of the Company's receipt, and retain therein, the following
collections received by the Company and payments made by the Company after the
related Cut-off Date, other than payments of principal and interest due on or
before the related Cut-off Date:"
(c) The first sentence of the second paragraph of Section 6.2 shall
be deleted in its entirety and replaced with the following:
"If the Company satisfies or releases the lien of the Mortgage
without first having obtained payment in full of the indebtedness secured by the
Mortgage (other than as a result of a modification pursuant to the terms of this
Agreement or liquidation of the Mortgaged Property pursuant to the terms of this
Agreement) or should the Company otherwise prejudice any rights the Purchaser
may have under the mortgage instruments, upon written demand of the Purchaser,
the Company shall repurchase the related Mortgage Loan at the Repurchase Price
by deposit thereof in the Custodial Account within two (2) Business Days of
receipt of such demand by the Purchaser."
(d) Section 6.4(i) shall be deleted in its entirety.
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(e) The language "(ii)" shall be deleted from Section 6.4(ii)
and the language "the Purchaser and any Depositor" in the second line of such
Section and the language "the Purchaser and such Depositor" in the third line of
such Section shall be replaced with the language "the Master Servicer".
(f) Section 6.5 shall be deleted in its entirety.
(g) The language "the Purchaser and any Depositor" and the
language "the Purchaser and such Depositor" occurring throughout Section 6.6
shall be deleted and replaced with the language "the Master Servicer".
(h) The phrase "With respect to any Mortgage Loans that are
the subject of a Securitization Transaction occurring on" in the first sentence
of the first paragraph of Section 6.6 shall be deleted in its entirety and shall
be replaced with "On".
(i) Section 10.1(ii) shall be deleted in its entirety and
replaced with the following:
"(ii) failure by the Company duly to observe or perform in any
material respect any other of the covenants or agreements on the part of the
Company set forth in this Agreement which continues unremedied for a period of
thirty (30) days (fifteen (15) days in the case of Section 6.4 and 6.6) after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Company by the Purchaser or by the
Custodian; or"
(j) Exhibit I shall be deleted in its entirety and be replaced
with a new "Exhibit I" which shall be as set forth in Exhibit D attached to this
Assignment 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 (other than as set forth herein) 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 date hereof, and the representations and warranties regarding
the Mortgage Loans contained in Section 3.2 of the Servicing Agreement were true
and correct as of the respective Closing Date.
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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 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, as modified by this Assignment 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 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
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(R) Version 5.7, Appendix E, as revised from time to time and in effect as
of the respective closing 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 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.
(g) 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 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 Mortgage Loan
Documents to the Assignee or its designee and shall inure to the benefit of the
Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. Upon the discovery by the Assignor or the Assignee
and its assigns of a breach of the foregoing representations and warranties, the
party discovering such breach shall give prompt written notice to the other
parties to this Assignment Agreement, and in no event later than two (2)
Business Days from the date of such discovery. It is understood and agreed that
the obligations of the Assignor set forth in Section 9 to repurchase, or in
limited circumstances, substitute a Mortgage Loan constitute the sole remedies
available to the Assignee and its assigns on their behalf respecting a breach of
the representations and warranties contained in Sections 6 and 7. It is further
understood and agreed that, except as specifically set forth in Sections 6 and
7, the Assignor shall be deemed not to have made the representations and
warranties in Section 7(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
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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) 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 Xxxxx Fargo
is required under the Servicing Agreement or any related agreement to which
Xxxxx Fargo 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 Xxxxx Fargo as
required by and in accordance with the Servicing Agreement or such related
agreement, as applicable. For purposes of this Section, "Early Payment Default"
shall mean any provision of the Servicing Agreement or any related agreement to
which Xxxxx Fargo 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 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 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 9, replaced or to be replaced by the Assignor with a Substitute
Mortgage Loan.
"Substitute Mortgage Loan" A mortgage loan substituted by the
Assignor for a Deleted Mortgage Loan which must, on the date of such
substitution, (i) have an outstanding principal balance, after deduction of all
scheduled payments due in the month of substitution (or in the case of a
substitution of more than one mortgage loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the Stated Principal Balance of
the Deleted Mortgage Loan, (ii) be accruing interest at a rate no lower than and
not more than 2% per annum higher than that of the Deleted Mortgage Loan, (iii)
have a remaining term to maturity not greater than and not more than one year
less than that of the Deleted Mortgage Loan, (iv) be of the same type as the
Deleted Mortgage Loan (i.e., fixed- 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.
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"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. Maintenance of Primary Mortgage Insurance Policy.
In accordance with customary and usual standards of practice, the
Servicer shall administer the Primary Mortgage Insurance Policy on behalf of the
Trustee for the benefit of the Certificateholders, in accordance with the
provisions contained therein, which administration shall include, but not be
limited to, making claims and receiving payments under the Primary Mortgage
Insurance Policy, as necessary, and complying with monthly unpaid principal
reporting and monthly default and delinquency reporting requirements. In
connection with its activities as Servicer of the applicable covered mortgage
loans listed on the mortgage loan schedule attached as Exhibit C hereto (the
"PMI Mortgage Loan Schedule"), the Servicer agrees to present, on behalf of the
Trustee and the Certificateholders, claims to the insurer under the Primary
Mortgage Insurance Policy and, in this regard, to take any reasonable action
necessary to permit recovery under the Primary Mortgage Insurance Policy
respecting defaulted Mortgage Loans including providing Loan Files (as defined
in the Primary Mortgage Insurance Policy) to GSMC and the PMI provider as
requested and in accordance with the requirements of the Primary Mortgage
Insurance Policy. Any amounts collected by the Servicer under the Primary
Mortgage Insurance Policy shall be remitted to the Securities Administrator for
deposit in the Distribution Account, other than amounts from claims remitted by
the PMI provider to the Servicer. Claims funds, other than premium refunds,
shall be retained by the Servicer and applied to the covered mortgage loans as
applicable and in accordance with the Servicing Agreement and the Primary
Mortgage Insurance Policy. Premium refunds remitted to the Servicer by the PMI
provider shall be remitted to the Securities Administrator for deposit in the
Distribution Account.
The Servicer shall notify and direct the Securities Administrator in
writing to remit all applicable premiums and associated premium taxes in
accordance with the Primary Mortgage Insurance Policy, and the Securities
Administrator, as directed by the Servicer, will be required to remit from trust
amounts all premiums and associated premium taxes on the Primary Mortgage
Insurance Policy from the Distribution Account. All monies required to be
remitted by the Servicer to the Securities Administrator shall be remitted by
wire as follows:
Bank: Xxxxx Fargo Bank, National Association
ABA: 000000000
For credit to: SAS Clearing
Account Number: 0000000000
Reference: GSAA 2006-16 Policy No. 00000-0000-0, PMI Bulk Deal
No.: 2006-0842
The Servicer shall bear the responsibility of notifying the
Securities Administrator in writing when the Servicer has liquidated a covered
mortgage loan and brought the associated UPB to zero, of any changes or
revisions to a Loan-Level Premium Rate (as defined in the
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Primary Mortgage Insurance Policy), of any changes or revisions to the rates of
Premium Taxes (as defined in the Primary Mortgage Insurance Policy) or of any
other changes or modifications that could reasonably affect the calculation of
premiums and associated premium taxes due under the Primary Mortgage Insurance
Policy. If, at any time, the Servicer becomes aware of an error which resulted
in a premium shortfall, the Servicer shall notify the Securities Administrator
in writing confirming such error and directing the Securities Administrator to
remit such shortfall amounts from trust amounts in the next Distribution Date.
For purposes of this Section, "Primary Mortgage Insurance Policy"
shall be defined as set forth below.
"Primary Mortgage Insurance Policy" The GSAA Home Equity Trust
2006-16, Asset-Backed Certificates, Series 2006-16, Bulk Primary First Lien
Mortgage Insurance Policy No. 00000-0000-0, PMI Bulk Deal No.: 2006-0842.
11. Continuing Effect.
Except as contemplated hereby, the Servicing Agreement shall remain
in full force and effect in accordance with its terms.
12. 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.
13. 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,
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Xxxxx Fargo Bank, National Association
1 Home Campus, MAC #X2302-033
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Xxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to,
Xxxxx Fargo Bank, National Association
1 Home Campus, MAC #X2401-06T
Xxx Xxxxxx, Xxxx 00000-0000
Attention: 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:
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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.
14. 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.
15. 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.
16. 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]
12
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement the day and year first above written.
XXXXXXX XXXXX MORTGAGE COMPANY,
a New York limited partnership, as Assignor
By: Xxxxxxx Sachs Real Estate Funding Corp.,
its general partner
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GS MORTGAGE SECURITIES CORP., as Assignee
By: /s/ Xxxxxxxx Xxxx
-----------------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as
Servicer
By: /s/ Xxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Senior Vice President
Xxxxx Fargo Step 1 AAR
Exhibit A
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
Exhibit B
Second Amended and Restated Master Seller's Warranties and Servicing Agreement
[On File with the Depositor]
Exhibit C
PMI Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
Exhibit D
Exhibit I to the Servicing Agreement
EXHIBIT I
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered by Xxxxx Fargo Bank,
National Association shall address, at a minimum, the criteria identified as
below as "Applicable Servicing Criteria":
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Applicable
Servicing Criteria Servicing Criteria
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Reference Criteria
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General Servicing Considerations
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1122(d)(1)(i) Policies and procedures are instituted to monitor any performance or X
other triggers and events of default in accordance with the transaction
agreements.
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1122(d)(1)(ii) If any material servicing activities are outsourced to third parties, X
policies and procedures are instituted to monitor the third party's
performance and compliance with such servicing activities.
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1122(d)(1)(iii) Any requirements in the transaction agreements to maintain a back-up
servicer for the mortgage loans are maintained.
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1122(d)(1)(iv) A fidelity bond and errors and omissions policy is in effect on the party X
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.
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Cash Collection and Administration
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1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate custodial X
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.
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1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to an X
investor are made only by authorized personnel.
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Applicable
Servicing Criteria Servicing Criteria
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Reference Criteria
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1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows or X
distributions, and any interest or other fees charged for such advances,
are made, reviewed and approved as specified in the transaction
agreements.
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1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve accounts X
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.
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1122(d)(2)(v) Each custodial account is maintained at a federally insured depository X
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.
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1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized access. X
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1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all asset-backed X
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.
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Investor Remittances and Reporting
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1122(d)(3)(i) Reports to investors, including those to be filed with the Commission, X
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.
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Applicable
Servicing Criteria Servicing Criteria
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Reference Criteria
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1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance with X
timeframes, distribution priority and other terms set forth in the
transaction agreements.
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1122(d)(3)(iii) Disbursements made to an investor are posted within two business days to X
the Servicer's investor records, or such other number of days specified
in the transaction agreements.
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1122(d)(3)(iv) Amounts remitted to investors per the investor
reports agree with X cancelled checks, or other form
of payment, or custodial bank statements.
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Pool Asset Administration
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1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required by the X
transaction agreements or related mortgage loan documents.
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1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by the X
transaction agreements
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1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are made, X
reviewed and approved in accordance with any conditions or requirements
in the transaction agreements.
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1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in accordance X
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.
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1122(d)(4)(v) The Servicer's records regarding the mortgage loans X
agree with the Servicer's records with respect to
an obligor's unpaid principal balance.
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1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's mortgage X
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.
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Applicable
Servicing Criteria Servicing Criteria
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Reference Criteria
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1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, X
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.
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1122(d)(4)(viii) Records documenting collection efforts are maintained during the period a X
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).
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1122(d)(4)(ix) Adjustments to interest rates or rates of return for X
mortgage loans with variable rates are computed
based on the related mortgage loan documents.
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1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow X
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.
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1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance payments) X
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.
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1122(d)(4)(xii) Any late payment penalties in connection with any payment to be made on X
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.
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Applicable
Servicing Criteria Servicing Criteria
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Reference Criteria
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1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two business X
days to the obligor's records maintained by the servicer, or such other
number of days specified in the transaction agreements.
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1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible
accounts are recognized and X recorded in accordance
with the transaction agreements.
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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.
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