ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GS MORTGAGE SECURITIES CORP., as Assignor and LYDIAN PRIVATE BANK, as Servicer and as acknowledged by WELLS FARGO BANK, N.A., as Master Servicer Dated as of January 1, 2006
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE,
as Assignee
and
LYDIAN PRIVATE BANK,
as Servicer
and as acknowledged by
▇▇▇▇▇ FARGO BANK, N.A.,
as Master Servicer
Dated as of
January 1, 2006
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this 1st day of January, 2006 (this “Assignment Agreement”), is among Lydian Private Bank (the “Servicer” or “Lydian”), U.S. Bank National Association (“U.S. Bank”), not in its individual capacity, but solely as trustee on behalf of GSR Mortgage Loan Trust 2006-AR1 (the “Assignee” or the “Trustee”), and GS Mortgage Securities Corp., a Delaware corporation (the “Assignor” or the “Depositor”), and is acknowledged by ▇▇▇▇▇ Fargo Bank, N.A. (“▇▇▇▇▇ Fargo”), as master servicer (in such capacity, the “Master Servicer”).
WHEREAS, Lydian sold to ▇▇▇▇▇▇▇ Sachs Mortgage Company (“GSMC”), on a servicing retained basis, certain mortgage loans listed on the mortgage loan schedule attached as Exhibit 1 hereto (the “Mortgage Loans”) pursuant to the Flow Seller’s Warranties and Servicing Agreement dated as of November 1, 2005 (the “Flow SWSA”), by and between GSMC, as purchaser, and Lydian, as seller and servicer;
WHEREAS, GSMC, the Assignor and the Servicer have entered into the Assignment, Assumption and Recognition Agreement dated as of January 1, 2006 (the “GSMC Assignment Agreement”), pursuant to which GSMC has sold to the Assignor the Mortgage Loans and assigned its rights under the Mortgage Loans and the Flow SWSA to the Assignor; and
WHEREAS, pursuant to a Master Servicing and Trust Agreement dated as of January 1, 2006 (the “Trust Agreement”), among the Assignor, as Depositor, the Assignee, as Trustee, JPMorgan Chase Bank, National Association, as a custodian (the “JPMorgan Custodian”), ▇▇▇▇▇ Fargo, as securities administrator, master servicer (in such capacity, the “Master Servicer”) and a custodian, and Deutsche Bank National Trust Company, as a custodian, the Assignor will transfer the Mortgage Loans to the Trustee, together with the Assignor’s rights under the Flow SWSA, to the extent relating to the Mortgage Loans (other than the rights of the Assignor 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, the GSMC Assignment Agreement and the Flow SWSA, to the extent relating to the Mortgage Loans (other than the rights of the Assignor to indemnification thereunder), and the Assignee hereby assumes all of the Assignor’s obligations under the Flow SWSA, to the extent relating to the Mortgage Loans, from and after January 30, 2006, and the Servicer hereby acknowledges such assignment and assumption and hereby agrees to the release of the Assignor from any obligations under the Flow SWSA from and after January 30, 2006, 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 that would serve to impair or encumber the Assignor’s ownership interest in the Mortgage Loans since the date of the Flow SWSA.
(c)
The Servicer and the Assignor shall have the right to amend, modify or terminate the Flow SWSA 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.
Accuracy of Flow SWSA. 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 Flow SWSA, (ii) the Flow SWSA is in full force and effect as of the date hereof, (iii) other than as provided herein, the Flow SWSA has not been amended or modified in any respect and (iv) no notice of termination has been given to the Servicer under the Flow SWSA. Lydian, in its capacity as seller and/or servicer under the Flow SWSA, further represents and warrants that the representations and warranties contained in Section 3.1 of the Flow SWSA are true and correct on and as of January 30, 2006.
3.
Recognition of Assignee.
(a)
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 shall service all of the Mortgage Loans for the benefit of the Assignee pursuant to the Flow SWSA, the terms of which are incorporated herein by reference. It is the intention of the Assignor, Servicer and Assignee that the Flow SWSA shall be binding upon and inure to the benefit of the Servicer and the Assignee and their successors and assigns.
(b)
The Servicer further acknowledges that, from and after the date hereof, it (and any of its successors under the Flow SWSA) will be subject to the supervision of the Master Servicer (except that the Master Servicer shall not be responsible for supervising the servicing of defaulted Mortgage Loans and REO Properties) and that the Master Servicer, acting on behalf of the Trustee as the owner of the Mortgage Loans, shall have the same rights as were assigned by GSMC, in its capacity as the original “Purchaser” under the Flow SWSA, to the Assignor under the GSMC Assignment Agreement, and further assigned hereunder by the Assignor to the Trustee, on behalf of the trust formed pursuant to the Trust Agreement. Such rights that the Master Servicer may enforce on behalf of the Trustee will include, without limitation, the right to terminate the Servicer under the Flow SWSA upon the occurrence of an event of default thereunder, the right to receive all remittances required to be made by the Servicer under the Flow SWSA, the right to receive all monthly reports and other data required to be delivered by the Servicer under the Flow SWSA and the right to exercise certain rights of consent and approval relating to actions taken by the Servicer.
(c)
All reports and other data required to be delivered by the Servicer to the “Purchaser” under the Flow SWSA shall be delivered to the Master Servicer or the Trustee, as designated by the Trustee, at the address set forth in Section 10 hereof. All remittances required to be made to the Trustee, as the successor in interest to the Assignor under the Flow SWSA, shall be made instead to the Master Servicer by wire transfer to the following account:
▇▇▇▇▇ FARGO BANK, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
FOR CREDIT TO: SAS CLEARING
ACCT: ▇▇▇▇▇▇▇▇▇▇
REFERENCE: GSR 2006-AR1 Acct #50891600
Notwithstanding anything to the contrary in the Flow SWSA, with respect to the Mortgage Loans, not later than the tenth calendar day of each month (or if such tenth calendar day is not a Business Day, the immediately succeeding Business Day), the Servicer shall furnish to the Master Servicer (i)(a) monthly loan data in a mutually agreed upon format, (b) default loan data in the format set forth in Exhibit 6 and Exhibit 7 hereto (or in such other format mutually agreed upon between the Servicer and the Master Servicer) and (c) information regarding the realized losses and gains in the format set forth in Exhibit 4 and Exhibit 5 hereto (or in such other format mutually agreed upon between the Servicer and the Master Servicer), in each case relating to the period ending on the last day of the preceding calendar month, (ii) all such information required pursuant to clause (i)(a) above on a magnetic tape, electronic mail or other similar media reasonably acceptable to the Master Servicer and (iii) all supporting documentation with respect to the information required under the preceding paragraph.
4.
Representations and Warranties of the Assignee. The Assignee hereby represents and warrants to the Assignor as follows:
(a)
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 Flow SWSA.
(b)
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).
5.
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 corporation in good standing under the laws of the State of Delaware with full power and authority (corporate and other) to enter into and perform its obligations under the Flow SWSA 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 (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.
(f)
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.
(g)
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.
(h)
Compliance with Applicable Laws. 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 the Mortgage Loans have been complied with. All inspections, licenses and certificates required to be made or issued with respect to all occupied portions of the Mortgaged Properties and, with respect to the use and occupancy of the same, including but not limited to certificates of occupancy and fire underwriting certificates, have been made or obtained from the appropriate authorities.
(i)
HOEPA. No Mortgage Loan is classified as a “high cost” mortgage loan under Section 32 of the Home Ownership and Equity Protection Act of 1994, as amended, and no Mortgage Loan is considered a “high cost” mortgage loan under any applicable federal, state or local laws.
(j)
No Mortgage Loan is a “high cost” or “covered loan,” as applicable (as such terms are defined in the then current Standard & Poor’s LEVELS Glossary, Appendix E, in effect on January 1, 2006) and no Mortgage Loan originated on or after October 1, 2002, through March 6, 2003, is governed by the Georgia Fair Lending Act.
For the purposes of this Section 5 the following definitions shall apply:
Covered Loan: A Mortgage Loan categorized as Covered pursuant to Appendix E of Standard & Poor’s Glossary.
Home Loan: A Mortgage Loan categorized as Home Loan pursuant to Appendix E of Standard & Poor’s Glossary.
Standard & Poor’s Glossary: The Standard & Poor’s LEVELS® Glossary, as may be in effect from time to time.
High Cost Loan: A Mortgage Loan classified as (i) a “high cost” loan under the Home Ownership and Equity Protection Act of 1994, (ii) a “high cost home,” “threshold,” “covered,” (excluding New Jersey “Covered Home Loans” as that term is defined in clause (1) of the definition of that term in the New Jersey Home Ownership Security Act of 2002), “high risk home,” “predatory” or similar loan under any other applicable state, federal or local law (or a similarly classified loan using different terminology under a law imposing heightened regulatory scrutiny or additional legal liability for residential mortgage loans having high interest rates, points and/or fees) or (iii) a Mortgage Loan categorized as High Cost pursuant to Appendix E of Standard & Poor’s Glossary. For avoidance of doubt, the parties agree that this definition shall apply to any law regardless of whether such law is presently, or in the future becomes, the subject of judicial review or litigation.
(k)
Bring Down. With respect to the Flow SWSA, nothing has occurred or failed to occur from and after the closing date set forth in the Flow SWSA to January 30, 2006, that would cause any of the representations and warranties relating to the Mortgage Loans set forth in Section 3.2 of the Flow SWSA to be incorrect in any material respects as of the date hereof as if made on the date hereof.
It is understood and agreed that the representations and warranties set forth in this Section 5 shall survive delivery of the respective Mortgage Loan Documents to the JPM Custodian 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 6 to repurchase 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 this Section 5. It is further understood and agreed that, except as specifically set forth in this Section 5, the Assignor shall be deemed not to have made the representations and warranties in Section 5(k) with respect to, and to the extent of, representations and warranties made, as to the matters covered in Section 5(k), by the Servicer in the Flow SWSA (or any officer’s certificate delivered pursuant thereto).
It is understood and agreed that the Assignor has made no representations or warranties to the Assignee other than those contained in this Section 5, and no other affiliate of the Assignor has made any representations or warranties of any kind to the Assignee.
6.
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 Purchase Price (as defined in the Trust Agreement). Notwithstanding the foregoing, however, if such breach is a Qualification Defect, such cure or repurchase must take place within seventy-five (75) days of discovery of such Qualification Defect.
In the event of a repurchase of any Mortgage Loan by the Assignor, the Trustee 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 Flow SWSA, but only insofar as the Flow SWSA relates to such Mortgage Loan.
In the event the Servicer has breached a representation or warranty under the Flow SWSA that is substantially identical to a representation or warranty breached by the Assignor hereunder, the Assignee shall first proceed against the Servicer. If the Servicer does not within sixty (60) 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 Flow SWSA) or purchase, or substitute for the Mortgage Loan, the Assignee shall be entitled to enforce the obligations of the Assignor hereunder to cure such breach or to repurchase the Mortgage Loan from the trust formed pursuant the Trust Agreement. In such event, the Assignor shall succeed to the rights of the Assignee to enforce the obligations of the Servicer to cure such breach or repurchase such Mortgage Loan under the terms of the Flow SWSA with respect 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.
7.
Amendment of the Flow SWSA. In connection with the transfer of the Mortgage Loans hereunder, the Servicer agrees that, from and after the date hereof, each Mortgage Loan transferred hereunder will be subject to, and serviced under, the Flow SWSA; provided that, solely with respect to the Mortgage Loans transferred hereunder, the following modifications shall be made:
(i)
Article I of the Flow SWSA shall be modified by deleting the following definitions in their entirety and replacing them as set forth herein:
“Servicing Fee Rate: With respect to any Mortgage Loan, the rate per annum set forth in the Mortgage Loan Schedule.”
(ii)
Sections 4.5(3) and (7) of the Flow SWSA are each hereby amended by adding “Monthly Advances,” before the words “Servicing Advances”.
(iii)
Section 5.1 of the Flow SWSA shall be amended to replace the language in the second and third sentences of the second paragraph thereof with the following: “Such interest shall be paid by the Company to the Purchaser on the date such late payment is made and shall cover the period commencing with the date on which such payment was due and ending with the date on which such payment is made, both inclusive.”
(iv)
Section 5.3 of the Flow SWSA is hereby amended by deleting the penultimate sentence of such section in its entirety and replacing it with the following:
“The Company’s obligation to make such Monthly Advances as to any Mortgage Loan will continue through the last Monthly Payment due prior to the payment in full of the Mortgage Loan, or through the last Remittance Date prior to the Remittance Date for the distribution of all Liquidation Proceeds and other payments or recoveries (including Insurance Proceeds and Condemnation Proceeds) with respect to the Mortgage Loan; provided, however, that such obligation shall cease if the Company determines, in its sole reasonable opinion, that advances with respect to such Mortgage Loan are non-recoverable by the Company from Liquidation Proceeds, Insurance Proceeds, Condemnation Proceeds, or otherwise with respect to a particular Mortgage Loan.”
(v)
Section 10.1 of the Flow SWSA shall be amended to include the following:
“(x)
failure by the Servicer to duly perform, within the required time period, its obligations under Sections 6.4, 6.5 or 9.1(c), which failure continues unremedied for a period of ten days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Servicer by any party to this Agreement or by any master servicer responsible for master servicing the Mortgage Loans pursuant to a securitization of such Mortgage Loans.”
(vi)
Section 11.3 of the Servicing Agreement is hereby deleted in its entirety and replacing it with the following:
“Notwithstanding any other provision hereof to the contrary, the Purchaser, at its option, may terminate this Agreement, and any rights the Company may have hereunder, with material cause upon ten (10) Business Days’ prior written notice; provided, however, that any termination for cause due to an Event of Default under Section 10.1(i) may be made without prior written notice. For all purposes of determining “material cause” with respect to termination of this Agreement or the rights of the Company hereunder, such term shall mean, without limitation, termination upon the occurrence of any Event of Default hereunder which is not cured within any applicable cure period. In the event of a termination of the Company for cause under this Section 11.3, no liquidated damages shall be payable to the Company pursuant to Section 11.2.”
(vii)
Section 13.5(a) of the Servicing Agreement is hereby amended by replacing “March 15” with “March 1”.
For the avoidance of doubt, the Flow SWSA is not hereby amended with respect to any other mortgage loans serviced thereunder and shall remain in full force and effect in accordance with its terms with respect to such other mortgage loans.
For purposes of this Section 7, capitalized terms used herein shall have the meanings assigned to such terms in the Flow SWSA.
8.
Continuing Effect. Except as contemplated hereby, the Flow SWSA shall remain in full force and effect in accordance with its terms.
9.
Governing Law.
THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10.
Notices. Any notices or other communications permitted or required hereunder or under the Flow SWSA 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,
Lydian Private Bank
3801 PGA Boulevard, ▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such address as may hereafter be furnished by the Servicer;
(b)
in the case of the Assignee,
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Structured Finance Department -
GSR 2006-AR1
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished by the Assignee; and
(c)
in the case of the Assignor,
GS Mortgage Securities Corp.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished by the Assignor.
(d)
in the case of the Master Servicer,
▇▇▇▇▇ Fargo Bank, N.A.
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Group (GSR 2006-AR1)
(or in the case of overnight deliveries,
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ 21045)
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished by the Master Servicer;
11.
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.
12.
Definitions. Any capitalized term used but not defined in this Assignment Agreement has the meaning assigned thereto in the Flow SWSA.
13.
Trustee Capacity. It is expressly understood and agreed by the parties hereto that insofar as this Assignment Agreement is executed by the Trustee: (i) nothing herein shall be construed as creating any liability on the part of U.S. Bank, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any Person claiming by, through or under the parties hereto, and (ii) under no circumstances shall U.S. Bank in its individual capacity be personally liable for the payment of any indebtedness or expenses undertaken under this Assignment Agreement.
14. Confidentiality. Notwithstanding anything to the contrary contained in this Assignment Agreement, the Servicer hereby agrees that the Depositor and its designees may file copies of the this Assignment Agreement with the Securities and Exchange Commission in accordance with Item 1108(c) of Regulation AB.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement the day and year first above written.
ASSIGNOR:
GS MORTGAGE SECURITIES CORP.
By:
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Managing Director
ASSIGNEE:
U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as Trustee
By:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
SERVICER:
LYDIAN PRIVATE BANK
By: /s/ I. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: I. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
MASTER SERVICER:
▇▇▇▇▇ FARGO BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
EXHIBIT 1
Mortgage Loan Schedule
EXHIBIT 2
Flow SWSA
EXHIBIT 3
[Reserved]
EXHIBIT 4
Calculation of Realized Loss/Gain Form 332– Instruction Sheet
NOTE: Do not net or combine items. Show all expenses individually and all credits as separate line items. Claim packages are due on the remittance report date. Late submissions may result in claims not being passed until the following month. The Servicer is responsible to remit all funds pending loss approval and /or resolution of any disputed items.
The numbers on the 332 form correspond with the numbers listed below.
Liquidation and Acquisition Expenses:
1.
The Actual Unpaid Principal Balance of the Mortgage Loan. For documentation, an Amortization Schedule from date of default through liquidation breaking out the net interest and servicing fees advanced is required.
2.
The Total Interest Due less the aggregate amount of servicing fee that would have been earned if all delinquent payments had been made as agreed. For documentation, an Amortization Schedule from date of default through liquidation breaking out the net interest and servicing fees advanced is required.
3.
Accrued Servicing Fees based upon the Scheduled Principal Balance of the Mortgage Loan as calculated on a monthly basis. For documentation, an Amortization Schedule from date of default through liquidation breaking out the net interest and servicing fees advanced is required.
4-12.
Complete as applicable. Required documentation:
* For taxes and insurance advances – see page 2 of 332 form - breakdown required showing period
of coverage, base tax, interest, penalty. Advances prior to default require evidence of servicer efforts to recover advances.
* For escrow advances - complete payment history
(to calculate advances from last positive escrow balance forward)
* Other expenses - copies of corporate advance history showing all payments
* REO repairs > $1500 require explanation
* REO repairs >$3000 require evidence of at least 2 bids.
* Short Sale or Charge Off require P&L supporting the decision and WFB’s approved Officer Certificate
* Unusual or extraordinary items may require further documentation.
13.
The total of lines 1 through 12.
Credits:
14-21.
Complete as applicable. Required documentation:
* Copy of the HUD 1 from the REO sale. If a 3rd Party Sale, bid instructions and Escrow Agent / Attorney
Letter of Proceeds Breakdown.
* Copy of EOB for any MI or gov't guarantee
* All other credits need to be clearly defined on the 332 form
22.
The total of lines 14 through 21.
Please Note:
For HUD/VA loans, use line (18a) for Part A/Initial proceeds and line (18b) for Part B/Supplemental proceeds.
Total Realized Loss (or Amount of Any Gain)
23.
The total derived from subtracting line 22 from 13. If the amount represents a realized gain, show the amount in parenthesis ( ).
EXHIBIT 5
Calculation of Realized Loss/Gain Form 332
▇▇▇▇▇ FARGO BANK, N.A.
CALCULATION OF REALIZED LOSS/GAIN
Prepared by: __________________
Date: _______________
Phone: ______________________ Email Address:_____________________
Servicer Loan No. | Servicer Name | Servicer Address |
▇▇▇▇▇ FARGO BANK, N.A. Loan No._____________________________
Borrower's Name: _________________________________________________________
Property Address: _________________________________________________________
Liquidation Type: REO Sale
3rd Party Sale
Short Sale
Charge Off
Was this loan granted a Bankruptcy deficiency or cramdown
Yes
No
If “Yes”, provide deficiency or cramdown amount _______________________________
Liquidation and Acquisition Expenses:
(1)
Actual Unpaid Principal Balance of Mortgage Loan
$ ______________
(1)
(2)
Interest accrued at Net Rate
________________
(2)
(3)
Accrued Servicing Fees
________________
(3)
(4)
Attorney's Fees
________________
(4)
(5)
Taxes (see page 2)
________________
(5)
(6)
Property Maintenance
________________
(6)
(7)
MI/Hazard Insurance Premiums (see page 2)
________________
(7)
(8)
Utility Expenses
________________
(8)
(9)
Appraisal/BPO
________________
(9)
(10)
Property Inspections
________________
(10)
(11)
FC Costs/Other Legal Expenses
________________
(11)
(12)
Other (itemize)
________________
(12)
Cash for Keys__________________________
________________
(12)
HOA/Condo Fees_______________________
________________
(12)
______________________________________
________________
(12)
Total Expenses
$ _______________
(13)
Credits:
(14)
Escrow Balance
$ _______________
(14)
(15)
HIP Refund
________________
(15)
(16)
Rental Receipts
________________
(16)
(17)
Hazard Loss Proceeds
________________
(17)
(18)
Primary Mortgage Insurance / Gov’t Insurance
________________
(18a) HUD Part A
________________ (18b) HUD Part B
(19)
Pool Insurance Proceeds
________________
(19)
(20)
Proceeds from Sale of Acquired Property
________________
(20)
(21)
Other (itemize)
________________
(21)
_________________________________________
________________
(21)
Total Credits
$________________
(22)
Total Realized Loss (or Amount of Gain)
$________________
(23)
Escrow Disbursement Detail
Type (Tax /Ins.) | Date Paid | Period of Coverage | Total Paid | Base Amount | Penalties | Interest |
EXHIBIT 6
Standard File Layout – Scheduled/Scheduled
Column Name | Description | Decimal | Format Comment | Max Size |
SER_INVESTOR_NBR | A value assigned by the Servicer to define a group of loans. |
| Text up to 10 digits | 20 |
LOAN_NBR | A unique identifier assigned to each loan by the investor. |
| Text up to 10 digits | 10 |
SERVICER_LOAN_NBR | A unique number assigned to a loan by the Servicer. This may be different than the LOAN_NBR. |
| Text up to 10 digits | 10 |
BORROWER_NAME | The borrower name as received in the file. It is not separated by first and last name. |
| Maximum length of 30 (Last, First) | 30 |
SCHED_PAY_AMT | Scheduled monthly principal and scheduled interest payment that a borrower is expected to pay, P&I constant. | 2 | No commas(,) or dollar signs ($) | 11 |
NOTE_INT_RATE | The loan interest rate as reported by the Servicer. | 4 | Max length of 6 | 6 |
NET_INT_RATE | The loan gross interest rate less the service fee rate as reported by the Servicer. | 4 | Max length of 6 | 6 |
SERV_FEE_RATE | The servicer's fee rate for a loan as reported by the Servicer. | 4 | Max length of 6 | 6 |
SERV_FEE_AMT | The servicer's fee amount for a loan as reported by the Servicer. | 2 | No commas(,) or dollar signs ($) | 11 |
NEW_PAY_AMT | The new loan payment amount as reported by the Servicer. | 2 | No commas(,) or dollar signs ($) | 11 |
NEW_LOAN_RATE | The new loan rate as reported by the Servicer. | 4 | Max length of 6 | 6 |
ARM_INDEX_RATE | The index the Servicer is using to calculate a forecasted rate. | 4 | Max length of 6 | 6 |
ACTL_BEG_PRIN_BAL | The borrower's actual principal balance at the beginning of the processing cycle. | 2 | No commas(,) or dollar signs ($) | 11 |
ACTL_END_PRIN_BAL | The borrower's actual principal balance at the end of the processing cycle. | 2 | No commas(,) or dollar signs ($) | 11 |
BORR_NEXT_PAY_DUE_DATE | The date at the end of processing cycle that the borrower's next payment is due to the Servicer, as reported by Servicer. |
| MM/DD/YYYY | 10 |
SERV_CURT_AMT_1 | The first curtailment amount to be applied. | 2 | No commas(,) or dollar signs ($) | 11 |
SERV_CURT_DATE_1 | The curtailment date associated with the first curtailment amount. |
| MM/DD/YYYY | 10 |
CURT_ADJ_ AMT_1 | The curtailment interest on the first curtailment amount, if applicable. | 2 | No commas(,) or dollar signs ($) | 11 |
SERV_CURT_AMT_2 | The second curtailment amount to be applied. | 2 | No commas(,) or dollar signs ($) | 11 |
SERV_CURT_DATE_2 | The curtailment date associated with the second curtailment amount. |
| MM/DD/YYYY | 10 |
CURT_ADJ_ AMT_2 | The curtailment interest on the second curtailment amount, if applicable. | 2 | No commas(,) or dollar signs ($) | 11 |
SERV_CURT_AMT_3 | The third curtailment amount to be applied. | 2 | No commas(,) or dollar signs ($) | 11 |
SERV_CURT_DATE_3 | The curtailment date associated with the third curtailment amount. |
| MM/DD/YYYY | 10 |
CURT_ADJ_AMT_3 | The curtailment interest on the third curtailment amount, if applicable. | 2 | No commas(,) or dollar signs ($) | 11 |
PIF_AMT | The loan "paid in full" amount as reported by the Servicer. | 2 | No commas(,) or dollar signs ($) | 11 |
PIF_DATE | The paid in full date as reported by the Servicer. |
| MM/DD/YYYY | 10 |
|
|
| Action Code Key: 15=Bankruptcy, ▇▇▇▇▇▇▇▇▇▇▇▇▇▇, , ▇▇▇▇▇▇, 63=Substitution, 65=Repurchase,70=REO | 2 |
ACTION_CODE | The standard FNMA numeric code used to indicate the default/delinquent status of a particular loan. | |||
INT_ADJ_AMT | The amount of the interest adjustment as reported by the Servicer. | 2 | No commas(,) or dollar signs ($) | 11 |
SOLDIER_SAILOR_ADJ_AMT | The Soldier and Sailor Adjustment amount, if applicable. | 2 | No commas(,) or dollar signs ($) | 11 |
NON_ADV_LOAN_AMT | The Non Recoverable Loan Amount, if applicable. | 2 | No commas(,) or dollar signs ($) | 11 |
LOAN_LOSS_AMT | The amount the Servicer is passing as a loss, if applicable. | 2 | No commas(,) or dollar signs ($) | 11 |
SCHED_BEG_PRIN_BAL | The scheduled outstanding principal amount due at the beginning of the cycle date to be passed through to investors. | 2 | No commas(,) or dollar signs ($) | 11 |
SCHED_END_PRIN_BAL | The scheduled principal balance due to investors at the end of a processing cycle. | 2 | No commas(,) or dollar signs ($) | 11 |
SCHED_PRIN_AMT | The scheduled principal amount as reported by the Servicer for the current cycle -- only applicable for Scheduled/Scheduled Loans. | 2 | No commas(,) or dollar signs ($) | 11 |
SCHED_NET_INT | The scheduled gross interest amount less the service fee amount for the current cycle as reported by the Servicer -- only applicable for Scheduled/Scheduled Loans. | 2 | No commas(,) or dollar signs ($) | 11 |
ACTL_PRIN_AMT | The actual principal amount collected by the Servicer for the current reporting cycle -- only applicable for Actual/Actual Loans. | 2 | No commas(,) or dollar signs ($) | 11 |
ACTL_NET_INT | The actual gross interest amount less the service fee amount for the current reporting cycle as reported by the Servicer -- only applicable for Actual/Actual Loans. | 2 | No commas(,) or dollar signs ($) | 11 |
PREPAY_PENALTY_ AMT | The penalty amount received when a borrower prepays on his loan as reported by the Servicer. | 2 | No commas(,) or dollar signs ($) | 11 |
PREPAY_PENALTY_ WAIVED | The prepayment penalty amount for the loan waived by the servicer. | 2 | No commas(,) or dollar signs ($) | 11 |
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MOD_DATE | The Effective Payment Date of the Modification for the loan. |
| MM/DD/YYYY | 10 |
MOD_TYPE | The Modification Type. |
| Varchar - value can be alpha or numeric | 30 |
DELINQ_P&I_ADVANCE_AMT | The current outstanding principal and interest advances made by Servicer. | 2 | No commas(,) or dollar signs ($) | 11 |
EXHIBIT 7
Standard File Layout – Delinquency Reporting
Column/Header Name | Description | Decimal | Format Comment |
SERVICER_LOAN_NBR | A unique number assigned to a loan by the Servicer. This may be different than the LOAN_NBR |
| |
LOAN_NBR | A unique identifier assigned to each loan by the originator. |
| |
CLIENT_NBR | Servicer Client Number | ||
SERV_INVESTOR_NBR | Contains a unique number as assigned by an external servicer to identify a group of loans in their system. |
| |
BORROWER_FIRST_NAME | First Name of the Borrower. | ||
BORROWER_LAST_NAME | Last name of the borrower. | ||
PROP_ADDRESS | Street Name and Number of Property |
| |
PROP_STATE | The state where the property located. |
| |
PROP_ZIP | Zip code where the property is located. |
| |
BORR_NEXT_PAY_DUE_DATE | The date that the borrower's next payment is due to the servicer at the end of processing cycle, as reported by Servicer. | MM/DD/YYYY | |
LOAN_TYPE | Loan Type (i.e. FHA, VA, Conv) |
| |
BANKRUPTCY_FILED_DATE | The date a particular bankruptcy claim was filed. | MM/DD/YYYY | |
BANKRUPTCY_CHAPTER_CODE | The chapter under which the bankruptcy was filed. |
| |
BANKRUPTCY_CASE_NBR | The case number assigned by the court to the bankruptcy filing. |
| |
POST_PETITION_DUE_DATE | The payment due date once the bankruptcy has been approved by the courts | MM/DD/YYYY | |
BANKRUPTCY_DCHRG_DISM_DATE | The Date The Loan Is Removed From Bankruptcy. Either by Dismissal, Discharged and/or a Motion For Relief Was Granted. | MM/DD/YYYY | |
LOSS_MIT_APPR_DATE | The Date The Loss Mitigation Was Approved By The Servicer | MM/DD/YYYY | |
LOSS_MIT_TYPE | The Type Of Loss Mitigation Approved For A Loan Such As; | ||
LOSS_MIT_EST_COMP_DATE | The Date The Loss Mitigation /Plan Is Scheduled To End/Close | MM/DD/YYYY | |
LOSS_MIT_ACT_COMP_DATE | The Date The Loss Mitigation Is Actually Completed | MM/DD/YYYY | |
FRCLSR_APPROVED_DATE | The date DA Admin sends a letter to the servicer with instructions to begin foreclosure proceedings. | MM/DD/YYYY | |
ATTORNEY_REFERRAL_DATE | Date File Was Referred To Attorney to Pursue Foreclosure | MM/DD/YYYY | |
FIRST_LEGAL_DATE | Notice of 1st legal filed by an Attorney in a Foreclosure Action | MM/DD/YYYY | |
FRCLSR_SALE_EXPECTED_DATE | The date by which a foreclosure sale is expected to occur. | MM/DD/YYYY | |
FRCLSR_SALE_DATE | The actual date of the foreclosure sale. | MM/DD/YYYY | |
FRCLSR_SALE_AMT | The amount a property sold for at the foreclosure sale. | 2 | No commas(,) or dollar signs ($) |
EVICTION_START_DATE | The date the servicer initiates eviction of the borrower. | MM/DD/YYYY | |
EVICTION_COMPLETED_DATE | The date the court revokes legal possession of the property from the borrower. | MM/DD/YYYY | |
LIST_PRICE | The price at which an REO property is marketed. | 2 | No commas(,) or dollar signs ($) |
LIST_DATE | The date an REO property is listed at a particular price. | MM/DD/YYYY | |
OFFER_AMT | The dollar value of an offer for an REO property. | 2 | No commas(,) or dollar signs ($) |
OFFER_DATE_TIME | The date an offer is received by DA Admin or by the Servicer. | MM/DD/YYYY | |
REO_CLOSING_DATE | The date the REO sale of the property is scheduled to close. | MM/DD/YYYY | |
REO_ACTUAL_CLOSING_DATE | Actual Date Of REO Sale | MM/DD/YYYY | |
OCCUPANT_CODE | Classification of how the property is occupied. |
| |
PROP_CONDITION_CODE | A code that indicates the condition of the property. |
| |
PROP_INSPECTION_DATE | The date a property inspection is performed. | MM/DD/YYYY | |
APPRAISAL_DATE | The date the appraisal was done. | MM/DD/YYYY | |
CURR_PROP_VAL | The current "as is" value of the property based on brokers price opinion or appraisal. | 2 |
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REPAIRED_PROP_VAL | The amount the property would be worth if repairs are completed pursuant to a broker's price opinion or appraisal. | 2 |
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If applicable: |
|
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DELINQ_STATUS_CODE | FNMA Code Describing Status of Loan | ||
DELINQ_REASON_CODE | The circumstances which caused a borrower to stop paying on a loan. Code indicates the reason why the loan is in default for this cycle. | ||
MI_CLAIM_FILED_DATE | Date Mortgage Insurance Claim Was Filed With Mortgage Insurance Company. | MM/DD/YYYY | |
MI_CLAIM_AMT | Amount of Mortgage Insurance Claim Filed | No commas(,) or dollar signs ($) | |
MI_CLAIM_PAID_DATE | Date Mortgage Insurance Company Disbursed Claim Payment | MM/DD/YYYY | |
MI_CLAIM_AMT_PAID | Amount Mortgage Insurance Company Paid On Claim | 2 | No commas(,) or dollar signs ($) |
POOL_CLAIM_FILED_DATE | Date Claim Was Filed With Pool Insurance Company | MM/DD/YYYY | |
POOL_CLAIM_AMT | Amount of Claim Filed With Pool Insurance Company | 2 | No commas(,) or dollar signs ($) |
POOL_CLAIM_PAID_DATE | Date Claim Was Settled and The Check Was Issued By The Pool Insurer | MM/DD/YYYY | |
POOL_CLAIM_AMT_PAID | Amount Paid On Claim By Pool Insurance Company | 2 | No commas(,) or dollar signs ($) |
FHA_PART_A_CLAIM_FILED_DATE | Date FHA Part A Claim Was Filed With HUD | MM/DD/YYYY | |
FHA_PART_A_CLAIM_AMT | Amount of FHA Part A Claim Filed | 2 | No commas(,) or dollar signs ($) |
FHA_PART_A_CLAIM_PAID_DATE | Date HUD Disbursed Part A Claim Payment | MM/DD/YYYY | |
FHA_PART_A_CLAIM_PAID_AMT | Amount HUD Paid on Part A Claim | 2 | No commas(,) or dollar signs ($) |
FHA_PART_B_CLAIM_FILED_DATE | Date FHA Part B Claim Was Filed With HUD | MM/DD/YYYY | |
FHA_PART_B_CLAIM_AMT | Amount of FHA Part B Claim Filed | 2 | No commas(,) or dollar signs ($) |
FHA_PART_B_CLAIM_PAID_DATE | Date HUD Disbursed Part B Claim Payment | MM/DD/YYYY | |
FHA_PART_B_CLAIM_PAID_AMT | Amount HUD Paid on Part B Claim | 2 | No commas(,) or dollar signs ($) |
VA_CLAIM_FILED_DATE | Date VA Claim Was Filed With the Veterans Admin | MM/DD/YYYY | |
VA_CLAIM_PAID_DATE | Date Veterans Admin. Disbursed VA Claim Payment | MM/DD/YYYY | |
VA_CLAIM_PAID_AMT | Amount Veterans Admin. Paid on VA Claim | 2 | No commas(,) or dollar signs ($) |
Standard File Codes – Delinquency Reporting
The Loss Mit Type field should show the approved Loss Mitigation Code as follows:
·
ASUM-
Approved Assumption
·
BAP-
Borrower Assistance Program
·
CO-
Charge Off
·
DIL-
Deed-in-Lieu
·
FFA-
Formal Forbearance Agreement
·
MOD-
Loan Modification
·
PRE-
Pre-Sale
·
SS-
Short Sale
·
MISC-
Anything else approved by the PMI or Pool Insurer
NOTE: ▇▇▇▇▇ Fargo Bank will accept alternative Loss Mitigation Types to those above, provided that they are consistent with industry standards. If Loss Mitigation Types other than those above are used, the Servicer must supply ▇▇▇▇▇ Fargo Bank with a description of each of the Loss Mitigation Types prior to sending the file.
The Occupant Code field should show the current status of the property code as follows:
·
Mortgagor
·
Tenant
·
Unknown
·
Vacant
The Property Condition field should show the last reported condition of the property as follows:
·
Damaged
·
Excellent
·
Fair
·
Gone
·
Good
·
Poor
·
Special Hazard
·
Unknown
Standard File Codes – Delinquency Reporting Continued
The FNMA Delinquent Reason Code field should show the Reason for Delinquency as follows:
Delinquency Code | Delinquency Description |
001 | FNMA-Death of principal mortgagor |
002 | FNMA-Illness of principal mortgagor |
003 | FNMA-Illness of mortgagor’s family member |
004 | FNMA-Death of mortgagor’s family member |
005 | FNMA-Marital difficulties |
006 | FNMA-Curtailment of income |
007 | FNMA-Excessive Obligation |
008 | FNMA-Abandonment of property |
009 | FNMA-Distant employee transfer |
011 | FNMA-Property problem |
012 | FNMA-Inability to sell property |
013 | FNMA-Inability to rent property |
014 | FNMA-Military Service |
015 | FNMA-Other |
016 | FNMA-Unemployment |
017 | FNMA-Business failure |
019 | FNMA-Casualty loss |
022 | FNMA-Energy environment costs |
023 | FNMA-Servicing problems |
026 | FNMA-Payment adjustment |
027 | FNMA-Payment dispute |
029 | FNMA-Transfer of ownership pending |
030 | FNMA-Fraud |
031 | FNMA-Unable to contact borrower |
INC | FNMA-Incarceration |
Standard File Codes – Delinquency Reporting Continued
The FNMA Delinquent Status Code field should show the Status of Default as follows:
Status Code | Status Description |
09 | Forbearance |
17 | Pre-foreclosure Sale Closing Plan Accepted |
24 | Government Seizure |
26 | Refinance |
27 | Assumption |
28 | Modification |
29 | Charge-Off |
30 | Third Party Sale |
31 | Probate |
32 | Military Indulgence |
43 | Foreclosure Started |
44 | Deed-in-Lieu Started |
49 | Assignment Completed |
61 | Second Lien Considerations |
62 | Veteran’s Affairs-No Bid |
63 | Veteran’s Affairs-Refund |
64 | Veteran’s Affairs-Buydown |
65 | Chapter 7 Bankruptcy |
66 | Chapter 11 Bankruptcy |
67 | Chapter 13 Bankruptcy |