Exhibit 99.9
EXECUTION COPY
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GSAA HOME EQUITY TRUST 2006-18
ASSET-BACKED CERTIFICATES
SERIES 2006-18
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
November 30, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment
Agreement") made this 30th day of November, 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 and (ii) the Assignment and Conveyance
Agreement (06 W61), dated as of August 15, 2006 (together, 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 November 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, The Bank of New York Trust
Company, National Association, as a custodian, U.S. Bank National Association,
as a custodian and Xxxxx Fargo, 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 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
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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 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".
(c) 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".
(d) 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".
(e) 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"
(f) 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.
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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.
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
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full power and authority (corporate and other) to enter into and perform its
obligations under the Servicing Agreement and this Assignment Agreement.
(b) Enforceability. This Assignment Agreement has been duly
executed and delivered by the Assignor, and, assuming due authorization,
execution and delivery by each of the other parties hereto, constitutes a
legal, valid, and binding agreement of the Assignor, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting creditors' rights generally and to
general principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law.
(c) No Consent. The execution, delivery and performance by the
Assignor of this Assignment Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such
as has been obtained, given, effected or taken prior to the date hereof.
(d) Authorization; No Breach. The execution and delivery of this
Assignment Agreement has been duly authorized by all necessary action on the
part of the Assignor; neither the execution and delivery by the Assignor of
this Assignment Agreement, nor the consummation by the Assignor of the
transactions herein contemplated, nor compliance by the Assignor with the
provisions hereof, will conflict with or result in a breach of, or constitute
a default under, any of the provisions of the governing documents of the
Assignor or any law, governmental rule or regulation or any material judgment,
decree or order binding on the Assignor or any of its properties, or any of
the provisions of any material indenture, mortgage, deed of trust, contract or
other instrument to which the Assignor is a party or by which it is bound.
(e) Actions; Proceedings. There are no actions, suits or
proceedings pending or, to the knowledge of the Assignor, threatened, before
or by any court, administrative agency, arbitrator or governmental body (i)
with respect to any of the transactions contemplated by this Assignment
Agreement or (ii) with respect to any other matter that in the judgment of the
Assignor will be determined adversely to the Assignor and will if determined
adversely to the 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
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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 5.7, 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,
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or in limited circumstances, substitute a Mortgage Loan constitute the sole
remedies available to the Assignee and its assigns on their behalf respecting
a breach of the representations and warranties contained in Sections 6 and 7.
It is further understood and agreed that, except as specifically set forth in
Sections 6 and 7, the Assignor shall be deemed not to have made the
representations and warranties in Section 7(g) with respect to, and to the
extent of, representations and warranties made, as to the matters covered in
Section 7(g), by the Servicer in the Servicing Agreement (or any officer's
certificate delivered pursuant thereto).
It is understood and agreed that, with respect to the Mortgage
Loans, the Assignor has made no representations or warranties to the Assignee
other than those contained in Sections 6 and 7, and no other affiliate of the
Assignor has made any representations or warranties of any kind to the
Assignee.
8. Representations and Warranties of the Servicer. The Servicer
hereby represents and warrants to the Assignee that, to the extent the
Mortgage Loans will be part of a REMIC, the Servicer shall service the
Mortgage Loans and any real property acquired upon default thereof (including,
without limitation, making or permitting any modification, waiver or amendment
of any term of any Mortgage Loan) 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.
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(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.
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.
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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.
"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
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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 2006-18 Policy No. 00000-0000-0, PMI Bulk Deal
No.: 2006-0992
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 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
2006-18, Asset-Backed Certificates, Series 2006-18, Bulk Primary First Lien
Mortgage Insurance Policy No. 00000-0000-0, PMI Bulk Deal No.: 2006-0992.
11. Continuing Effect.
Except as contemplated hereby, the Servicing Agreement shall
remain in full force and effect in accordance with its terms.
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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,
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;
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(b) in the case of the Assignee,
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignee, and
(c) in the case of the Assignor,
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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.
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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]
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IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement the day and year first above written.
XXXXXXX SACHS MORTGAGE COMPANY,
a New York limited partnership, as Assignor
By: Xxxxxxx Xxxxx Real Estate Funding Corp.,
its general partner
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Name:
Title:
GS MORTGAGE SECURITIES CORP., as Assignee
By: /s/ Xxxx X. Xxxxx
-------------------------------------------
Name:
Title:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Servicer
By: /s/ Xxxxxxx Xxxxxx
-------------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Sr. XX
Xxxxx Fargo Step 1 AAR
Exhibit A
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Mortgage Loan Schedule
----------------------
[On File with the Securities Administrator as provided by the Depositor]
Exhibit B
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Second Amended and Restated Master Seller's Warranties and Servicing Agreement
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[On File with the Depositor]
Exhibit C
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PMI Mortgage Loan Schedule
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[On File with the Securities Administrator as provided by the Depositor]
Exhibit D
Exhibit I to the Servicing Agreement
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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 X
or 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 X
parties, 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 X
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.
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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 X
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.
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1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to X
an investor are made only by authorized personnel.
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Applicable
Servicing Criteria Servicing Criteria
------------------------ -------------------------------------------------------------------- ------------------------
Reference Criteria
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1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows X
or 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 X
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.
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1122(d)(2)(v) Each custodial account is maintained at a federally insured X
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.
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1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized X
access.
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1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all X
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.
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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 X
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
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Applicable
Servicing Criteria Servicing Criteria
------------------------ -------------------------------------------------------------------- ------------------------
Reference Criteria
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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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1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance X
with 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 X
days to 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 X
by the 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 X
the transaction agreements
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1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are X
made, 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 X
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.
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1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the X
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 X
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.
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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 X
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).
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1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage X
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 X
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.
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1122(d)(4)(xii) Any late payment penalties in connection with any payment to be X
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.
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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 X
business 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 X
recognized and 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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