GSAA HOME EQUITY TRUST 2007-10 ASSET-BACKED CERTIFICATES SERIES 2007-10 ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GOLDMAN SACHS MORTGAGE COMPANY, as Assignor GS MORTGAGE SECURITIES CORP., as Assignee and GREENPOINT MORTGAGE FUNDING, INC....
Exhibit
99.4
EXECUTION
COPY
ASSET-BACKED
CERTIFICATES
SERIES
2007-10
among
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY,
as
Assignor
GS
MORTGAGE SECURITIES CORP.,
as
Assignee
and
GREENPOINT
MORTGAGE FUNDING, INC.
as
Servicer
Dated
as of
October
30, 2007
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment Agreement”) made
this 30th day of October, 2007, among GreenPoint Mortgage Funding, Inc.,
(“GreenPoint” or the “Servicer”), GS Mortgage Securities Corp., as
assignee (the “Assignee”), and ▇▇▇▇▇▇▇ Sachs Mortgage Company, as
assignor (the “Assignor”).
WHEREAS,
the Assignor and the Servicer have entered into (i) the Servicing Agreement,
dated as of November 1, 2005 (the “Servicing Agreement”), and (ii) the
Amended and Restated Master Mortgage Loan Purchase Agreement, dated as of
November 1, 2005 (the “Sale Agreement”), as amended by that certain
Amendment No. 1, dated July 23, 2007 between GreenPoint and the Assignor,
pursuant to which the Servicer sold to the Assignor certain mortgage loans
listed on the mortgage loan schedule attached as an exhibit to the Servicing
Agreement;
WHEREAS,
as an inducement to the Assignor to purchase the Mortgage Loans, Capital One,
National Association (the “Guarantor”), the indirect parent of Greenpoint, has
entered into the Guarantee, dated August 30, 2007 (the “Guaranty”) for the
benefit of 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 Sale Agreement and
are
listed on the mortgage loan schedule attached as Exhibit 1 hereto (the
“Mortgage Loan Schedule”); and
WHEREAS,
pursuant to a Master Servicing and Trust Agreement, dated as of October 1,
2007
(the “Trust Agreement”), among GS Mortgage Securities Corp., as
depositor, Citibank, National Association, as trustee (in such capacity, the
“Trustee”), U.S. Bank National Association, as a custodian and ▇▇▇▇▇
Fargo Bank, National Association, as master servicer (in such capacity, the
“Master Servicer”), as 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, the Servicing Agreement.
the Sale Agreement and the Guaranty 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), and the Assignee
hereby assumes all of the Assignor’s obligations under the Servicing Agreement
and the Sale Agreement, to the extent relating to the Mortgage Loans, from
and
after the date hereof, and the Servicer hereby acknowledges such assignment
and
assumption
2
and
hereby agrees to the release of the Assignor from any obligations under the
Servicing Agreement and the Sale Agreement from and after the date hereof,
to
the extent relating to the Mortgage Loans.
(b) The
Assignor represents and warrants to the Assignee that the Assignor has not
taken
any action which would serve to impair or encumber the Assignor’s ownership
interest in the Mortgage Loans since the respective dates of the Servicing
Agreement and the Sale 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 Sale Agreement. Only in so far as it relates to the
Mortgage Loans, the Servicer and the Assignor hereby amend the Sale Agreement
as
follows:
(a) The
definition of “Repurchase Price” in Article I of the Sale Agreement shall be
amended by deleting the definition in its entirety and replacing it with the
following:
“Repurchase
Price: With respect to any Mortgage Loan, a price equal to (i)
the Stated Principal Balance of the Mortgage Loan as of the date of repurchase
plus (ii) interest on such Stated Principal Balance at the Mortgage Loan
Remittance Rate from the last date through which interest has been paid and
distributed to the Purchaser to the last day of the month in which the
repurchase occurs, less amounts received or advanced in respect of such
repurchased Mortgage Loan which such amounts are being held in the Custodial
Account for distribution in the month of repurchase plus (iii) with respect
to
any Mortgage Loan included in a Securitization Transaction, damages incurred
by
the Purchaser or its assignee including the trust in any securitization in
connection with any violation by such Mortgage Loan of any predatory or abusive
lending law.”
(b) The
definition of “Remittance Date” in Article I of the Sale Agreement shall be
amended by deleting the definition in its entirety and replacing it with the
following:
“With
respect to each Mortgage Loan: the eighteenth (18th) day of
any month,
beginning with the eighteenth (18th) day of
the month
next following the month in which the related Cut-off Date occurs, or if such
eighteenth (18th) day is
not a
Business Day, the immediately preceding Business Day.”
(c) The
following definitions shall be added before the definition of “GreenPoint” in
Article I of the Sale Agreement:
“Guaranty
Agreement: the Guaranty Agreement, dated as of August 30, 2007, from Guarantor
in favor of Purchaser.
Guarantor: Capital
One, National Association
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Guaranteed
Obligations: all sums due or to become due by GreenPoint under
Sections 3.01, 3.02 and 3.03 of this Agreement, as amended and supplemented
by
the trade confirmations and the purchase confirmations entered into from time
to
time between Purchaser and Greenpoint, including but not limited to any
repurchase and indemnification obligations of Greenpoint with respect to
mortgage loans purchased by Purchaser on or after December 1,
2006.”
(d) a
new section, Section 8, will be added immediately following Subsection 7.04
which shall read as follows:
“SECTION
8. Third Party Beneficiary.
▇▇▇▇▇
Fargo Bank, National Association, as master servicer and securities
administrator under the Master Servicing and Trust Agreement, dated as of
October 1, 2007, among GS Mortgage Securities Corp., as depositor, Citibank,
National Association, as trustee, U.S. Bank National Association, as a
custodian, Deutsche Bank National Trust Company, as a custodian and ▇▇▇▇▇ Fargo
Bank, National Association as a custodian, shall be considered a third-party
beneficiary to this Agreement entitled to all of the rights and benefits
accruing to it as if it were a direct party to this Agreement.”
3. Modification
of the Servicing Agreement. Only in so far as it relates to the
Mortgage Loans, the Servicer and the Assignor hereby amend the Servicing
Agreement as follows:
(a) a
new
section, Section 11, will be added immediately following Subsection 10.07 which
shall read as follows:
“SECTION
11. Third Party Beneficiary.
▇▇▇▇▇
Fargo Bank, National Association, as master servicer and securities
administrator under the Master Servicing and Trust Agreement, dated as of
October 1, 2007, among GS Mortgage Securities Corp., as depositor, Citibank,
National Association, as trustee, U.S. Bank National Association, as a
custodian, Deutsche Bank National Trust Company, as a Custodian and ▇▇▇▇▇ Fargo
Bank, National Association as a custodian, shall be considered a third-party
beneficiary to this Agreement entitled to all of the rights and benefits
accruing to it as if it were a direct party to this Agreement.”
(b) the
definition of “Business Day” in Section 1 shall be amended by deleting the
definition in its entirety and replacing it with the following:
“Business
Day: Any day other than (i) a Saturday or Sunday, or (ii) a day on
which banking or savings and loan institutions in the States of California,
Maryland, Minnesota or New York are authorized or obligated by law or executive
order to be closed.”
(c) A
new
subsection (n) shall be added immediately following subsection (m) in Section
2.1 as follows:
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“The
Servicer shall maintain a servicer rating of at least “Average” and “RPS2” or
the equivalent, by at least two Rating Agencies.”
(d) The
second paragraph of Section 3.13(c) shall be deleted in its entirety and
replaced with:
“The
Servicer shall use its best efforts to dispose of the REO Property as soon
as
possible and shall sell such REO Property in any event within three years after
title has been taken to such REO Property, not later than the end of the third
taxable year after the year of its acquisition unless (i) (A) a REMIC election
has not been made with respect to the arrangement under which the Mortgage
Loans
and the REO Property are held, and (ii) the Servicer determines, and gives
an
appropriate notice to the Owner to such effect, that a longer period is
necessary for the orderly liquidation of such REO Property. If a
period longer than three years is permitted under the foregoing sentence and
is
necessary to sell any REO Property, (i) the Servicer shall report monthly to
the
Owner as to the progress being made in selling such REO Property, (ii) the
Servicer shall obtain an extension from the Internal Revenue Service and (iii)
if, with the written consent of the Owner, a purchase money mortgage is taken
in
connection with such sale, such purchase money mortgage shall name the Servicer
as mortgagee, and such purchase money mortgage shall not be held pursuant to
this Agreement, but instead a separate participation agreement among the
Servicer and Owner shall be entered into with respect to such purchase money
mortgage.”
(e) Section
4.1(b) shall be amended by deleting it in its entirety and replacing it with
the
following:
“With
respect to any remittance to the Owner made by the Servicer after the date
such
remittance was due, the Servicer shall pay to the Owner interest on such late
remittance at an annual rate equal to Prime plus two percent (2.0%), but in
no
event greater than the maximum amount permitted by applicable
law. Such interest shall be deposited in the Custodial Account by the
Servicer on the date such late remittance is made and shall cover the period
commencing with the day immediately following the Remittance Date and ending
with the Business Day on which such late remittance is made, both
inclusive. Such interest shall be remitted along with such late
remittance. The payment by the Servicer of any such interest shall
not be deemed an extension of time for payment or a waiver of any Event of
Default by the Servicer.”
(f) Notwithstanding
Sections 10.4 and 10.5 of the Servicing Agreement, Section 5.4(a) shall be
amended by replacing the words “March 15” with the words “February 28 (provided
that if, February 28 is not a Business Day the immediately preceding Business
Day).”;
(g) Notwithstanding
Sections 10.4 and 10.5 of the Servicing Agreement, Section 5.4(b) shall be
amended by replacing the words “March 15” with the words “February 28 (provided
that if, February 28 is not a Business Day the immediately preceding Business
Day).”;
(h) Notwithstanding
Sections 10.4 and 10.5 of the Servicing Agreement, Section 5.5 shall be amended
by replacing the words “March 15” with the words “February 28 (provided that if,
February 28 is not a Business Day the immediately preceding Business
Day)”;
5
(i) Section
6.1 shall be amended by deleting the first paragraph of Section 6.1 and
replacing it with the following:
“Subject
to Section 6.3, the Servicer agrees to indemnify and hold harmless the Owner
or
Master Servicer, as applicable, against any and all Losses that the Owner or
Master Servicer may sustain in any way related to the failure of such Servicer
to service the Mortgage Loans in compliance with the terms of this Agreement;
provided, however, the Servicer shall not be liable hereunder (a) to the
extent such Losses directly result from the Custodian’s negligent action,
negligent failure to act, bad faith, willful misconduct or breach under the
Custodial Agreement, dated as of April 1, 2004, among the Owner and the
Custodian, (b) with respect to any action or inaction in accordance with the
direction or consent of the Owner or (c) resulting from the Owner’s failure to
respond to a request by the Servicer for direction or consent in accordance
with
Section 3.1(c) hereof. The Servicer shall immediately notify the
Owner and the Master Servicer, if a claim is made by a third party with respect
to this Agreement or the Mortgage Loans. The Servicer shall assume
(with the written notification to the Owner or Master Servicer, as applicable)
the defense of any such claim and pay all reasonable expenses in connection
therewith, including counsel fees, and promptly pay, discharge and satisfy
any
judgment or decree which may be entered against the Servicer, the Owner or
the
Master Servicer, subject to limitation pursuant to this Section 6.1, in respect
of such claim. The Servicer shall follow any written instructions
received from the Owner or the Master Servicer, as applicable, in connection
with any such claim and the Owner or the Master Servicer, as applicable, shall
promptly reimburse the Servicer for all amounts reasonably advanced by it
pursuant to the preceding sentence, except when the claim (a) is related to
the
Servicer’s obligations to indemnify the Owner or Master Servicer pursuant
hereto, (b) results from the failure of the Servicer to service the
Mortgage Loans in compliance with the terms of this Agreement or (c) results
from the Servicer’s willful misconduct, bad faith or negligence in performing
its duties under this Agreement.”
(j) Section
7.1 shall be amended as follows:
(k) Subsection
(ii) of Section 7.1 shall be deleted in its entirety and replaced with the
following:
“failure
by the Servicer duly to observe or perform in any material respect any of the
covenants or agreements on the part of the Servicer set forth in this Agreement
(other than those listed in subsection (i) and subsection (x) of this Section
7.1) which continues unremedied for a period of 30 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 the Owner or by the Custodian; or”;
(ii) A
new subsection (x) shall be added immediately following subsection (ix) which
shall be as follows:
“failure
by the Servicer duly to observe or perform in any material respect any of the
covenants or agreements on the part of the Servicer set forth in Section 5.4
and
Section 5.5 of this Agreement which continues unremedied for a period of fifteen
(15) days after the date on which written notice of such failure, requiring
the
same to be remedied shall have been given to the Servicer.”
6
(iii) A
new subsection (xi) shall be added following subsection (x) which shall be
as
follows:
“any
downgrade, reduction, withdrawal, qualification of the servicer rating by any
Rating Agency from such rating the Servicer maintained on October 1,
2007.”
(iv) A
new subsection (xii) shall be added following subsection (xi) which shall be
as
follows:
“any
of
the following events shall occur in connection with the Master Mortgage Loan
Purchase Agreement:
|
(a)
|
a
decree or order of a court or agency or supervisory authority having
jurisdiction for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, including bankruptcy,
marshaling of assets and liabilities, or similar proceedings, or
for the
winding-up or liquidation of its affairs, shall have been entered
against
the Guarantor (as defined therein) and such decree or order shall
have
remained in force, undischarged or unstayed for a period of thirty
(30)
days; or
|
| (b) | the Guarantor shall consent to the appointment of a conservator, receiver or liquidator in any insolvency, readjustment of debt, marshaling of assets and liabilities or similar proceedings of or relating to the Guarantor or relating to all or substantially all of the Guarantor's property; or |
| (c) | the Guarantor shall admit in writing its inability to pay its debts as they become due, file a petition to take advantage of any applicable insolvency or reorganization statute, make an assignment for the benefit of its creditors, or voluntarily suspend payment of its obligation or ceases its normal business operations for three (3) Business Days; or |
| (d) | the Guarantor shall admit to any Person its inability to, or its intention not to, perform any of its Guaranteed Obligations (as defined therein); |
| (e) | the Guaranty Agreement(as defined therein) or a replacement therefor acceptable to Owner shall for whatever reason be terminated or cease to be in full force and effect, or the enforceability thereof in accordance with its terms shall be contested by Guarantor or GreenPoint; or |
|
(f)
|
the breach by Guarantor of any term or condition set forth in the Guaranty Agreement or of any representation, warranty, certification or covenant made or deemed made in the Guaranty Agreement by Guarantor;” and |
(l) Section
8.2(a) shall be amended by deleting the words “30 days’” from the first sentence
of the first paragraph thereof.
7
(m)
Section
9.1(b) shall be deleted in its entirety and replaced with the
following:
“The
Servicer shall deliver to the successor (i) the funds in the Custodial Account
and the Escrow Account to which the Owner is entitled pursuant to the terms
of
this Agreement, (ii) all other funds to which the Owner is entitled pursuant
to
the terms of this Agreement net of any unreimbursed Advances and (iii) all
other
amounts which may thereafter be received with respect to the Mortgage Loans
and
to which the Servicer is not entitled pursuant to the terms of this Agreement
within two Business Days of receiving notice of the appointment of such
successor servicer. The Servicer shall deliver all Collateral Files
and Servicing Files and related documents and statements held by it hereunder
within thirty calendar days of receiving notice of the appointment of a
successor servicer. The Servicer shall account for all funds and
shall execute and deliver such instruments and do such other things as may
reasonably be required to more fully and definitively vest in the successor
all
such rights, powers, duties, responsibilities, obligations and liabilities
of
the Servicer.”
(n) Exhibit
E
shall be deleted in its entirety and be replaced with a new “Exhibit E” which
shall be as set forth in Exhibit 5 attached to this Assignment
Agreement.
(o) Section
3.4(a) shall be deleted in its entirety and replaced with the
following:
(a)
The Servicer shall segregate and hold all funds collected and received pursuant
to the Mortgage Loans separate and apart from any of its own funds and general
assets and shall establish and maintain one or more Custodial Accounts
(collectively, with respect to the accounts maintained by any one Servicer,
its
“Custodial Account”), in the form of time deposit or demand accounts, which may
be interest bearing, titled, with respect to the Servicer, “Greenpoint Mortgage
Funding, Inc., for the benefit of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company as Owner,
and
any successor Owner.” Such Custodial Account shall be an Eligible
Account. If the Custodial Account ceases to be an Eligible Account,
the Servicer shall transfer the Custodial Account within thirty (30) days to
a
substitute Qualified Depository.
With
respect to each Securitization Transaction, the Servicer shall establish a
separate Custodial Account for the related securitization and deposit all
amounts that have been or are subsequently received with respect to the Mortgage
Loans included in such Securitization Transaction into the Custodial Account
created for the securitization on the date of the Securitization Transfer,
or as
soon as possible thereafter (but not to exceed 48 hours after such
date). All funds held in such separate Custodial Account shall be for
the benefit of the trust created in connection with such Securitization
Transaction.
(p) the
definition of “Qualified Depository” in Section 1 shall be amended by deleting
the definition in its entirety and replacing it with the following:
Qualified
Depository: A depository the accounts of which are insured by the
FDIC and is otherwise acceptable to the Rating Agencies. For the
avoidance of doubt, a depository will be acceptable to Standard & Poor’s if
its short-term unsecured debt obligations
8
are
rated
“A-2” or above or, if such depository’s short-term unsecured debt obligations
are not rated, its long-term unsecured debt obligations are rated “BBB+” or
above by Standard & Poor’s.
(q) Section
10.5 will be amended by adding a new paragraph as follows:
Notwithstanding
the foregoing provisions of Section 10.5, (i) in the event that during any
calendar year (or applicable portion thereof) the Company services 5% or less
of
the mortgage loans in a Securitization Transaction, as calculated by the Master
Servicer for such Securitization Transaction, or (ii) in any calendar year
in
which an annual report on Form 10-K is not required to be filed with respect
to
an issuing entity or Securitization Transaction, then, in each such event,
the
Company may, in lieu of providing an assessment of compliance and attestation
thereon in accordance with Item 1122 of Regulation AB, provide (and cause each
Subservicer and Subcontractor described in clause (a)(iii) above to provide)
to
the Depositor and the Master Servicer for such Securitization Transaction,
by
not later than March 1 of such calendar year, an Annual Independent Public
Accountants’ Servicing Report. If the Company provides an Annual
Independent Public Accountants’ Servicing Report pursuant to this subsection
(c), then the certification required to be delivered by the Company (and its
Subservicers and Subcontractors) pursuant to clause (a)(iv) above shall be
in
the form of Exhibit D-2 attached hereto instead of Exhibit D-1.
(r) a
new
definition of “Annual Independent Public Accountants’ Servicing Report” will be
added to Article I in the appropriate alphabetical order which shall read as
follows:
Annual
Independent Public Accountants’ Servicing Report: A report of a
firm of independent public accountants which is a member of the American
Institute of Certified Public Accountants to the effect that such firm has
examined certain documents and records relating to the servicing of the Mortgage
Loans or mortgage loans similar in nature to the Mortgage Loans by the Company
and that such firm is of the opinion that the provisions of this Agreement
or
similar servicing agreements have been complied with, and that, on the basis
of
such examination conducted substantially in compliance with the Uniform Single
Attestation Program for Mortgage Bankers, nothing has come to the attention
of
such firm which would indicate that such servicing has not been conducted in
compliance therewith, except (i) such exceptions such firm shall believe to
be
immaterial, and (ii) such other exceptions as shall be set forth in such
report. No Annual Independent Public Accountants’ Servicing Report
shall contain any provision restricting the use of such report by the Company,
including any prohibition on the inclusion of any such report in any filing
with
the Commission.
(s) Exhibit
D
will be renamed Exhibit D-1.
(t) Exhibit
6 attached hereto shall be added to the Servicing Agreement as Exhibit
D-2.
4. Accuracy
of the Servicing Agreement, the Sale Agreement and the
Guaranty. The Servicer and the Assignor represent and warrant to
the Assignee that (i) attached hereto as Exhibit 2 is a true, accurate
and complete copy of the Servicing Agreement, (ii) attached
hereto as Exhibit 3 is a true, accurate and complete copy of the Sale
Agreement, (iii)
9
attached
hereto as Exhibit 4 is a true, accurate and complete copy of the
Guaranty, (iv) each of the Servicing Agreement and the Sale Agreement is in
full
force and effect as of the date hereof, (v) except as provided in Section 2
above, each of the Servicing Agreement and the Sale Agreement has not been
amended or modified in any respect and (vi) no notice of termination has been
given to the Servicer under the Servicing Agreement or the Sale
Agreement. The Servicer, in its capacity as seller and/or servicer
under each of the Servicing Agreement and the Sale Agreement, further represents
and warrants that the representations and warranties contained in Section 2.1
of
the Servicing Agreement are true and correct as of the Closing Date (as such
term is defined in the Servicing Agreement) and the representations and
warranties regarding the Mortgage Loans contained in Section 3.02 of the Sale
Agreement were true and correct as of the Closing Date (as such term is defined
in the Sale Agreement).
5. Recognition
of Assignee. From and after the date hereof, the Servicer shall
note the transfer of the Mortgage Loans to the Assignee in its books and
records, shall recognize the Assignee as the owner of the Mortgage Loans and,
notwithstanding anything herein to the contrary, shall service all of the
Mortgage Loans for the benefit of the Assignee pursuant to the Servicing
Agreement the terms of which are incorporated herein by reference. It
is the intention of the Assignor, Servicer and Assignee that the Servicing
Agreement shall be binding upon and inure to the benefit of the Servicer and
the
Assignee and their successors and assigns.
6.
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, the Sale 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 and the Sale 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).
7.
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
10
full
power and authority (corporate and other) to enter into and perform its
obligations under the Servicing Agreement, the Sale Agreement and this
Assignment Agreement.
(b) Enforceability. This
Assignment Agreement has been duly executed and delivered by the Assignor,
and,
assuming due authorization, execution and delivery by each of the other parties
hereto, constitutes a legal, valid, and binding agreement of the Assignor,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, or other similar laws affecting
creditors’ rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law.
(c) No
Consent. The execution, delivery and performance by the Assignor
of this Assignment Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such
as
has been obtained, given, effected or taken prior to the date
hereof.
(d) Authorization;
No Breach. The execution and delivery of this Assignment
Agreement have been duly authorized by all necessary corporate action on the
part of the Assignor; neither the execution and delivery by the Assignor of
this
Assignment Agreement, nor the consummation by the Assignor of the transactions
herein contemplated, nor compliance by the Assignor with the provisions hereof,
will conflict with or result in a breach of, or constitute a default under,
any
of the provisions of the governing documents of the Assignor or any law,
governmental rule or regulation or any material judgment, decree or order
binding on the Assignor or any of its properties, or any of the provisions
of
any material indenture, mortgage, deed of trust, contract or other instrument
to
which the Assignor is a party or by which it is bound.
(e) Actions;
Proceedings. There are no actions, suits or proceedings pending
or, to the knowledge of the Assignor, threatened, before or by any court,
administrative agency, arbitrator or governmental body (A) with respect to
any
of the transactions contemplated by this Assignment Agreement or (B) with
respect to any other matter that in the judgment of the Assignor will be
determined adversely to the Assignor and will, if determined adversely to the
Assignor, materially adversely affect its ability to perform its obligations
under this Assignment Agreement.
8. 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
11
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® Version 6.0, Appendix E, as revised from time to time and in
effect as of the Original Purchase Date. Furthermore, none of the
Mortgage Loans sold by the Seller are classified as (a) a “high cost mortgage”
loan under the Home Ownership and Equity Protection Act of 1994 or (b) a “high
cost home,” “covered,” “high-cost,” “high-risk home,” or “predatory” loan under
any other applicable state, federal or local law.
(e) Georgia
Fair Lending Act. No Mortgage Loan is secured by a property in
the state of Georgia and originated between October 1, 2002 and
March 7, 2003.
(f) Credit
Reporting. The Assignor will 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 such
Sale Agreement to the date hereof that would cause any of the representations
and warranties relating to such Mortgage Loan set forth in Section 3.02 of
the Sale 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 7 and 8 shall survive delivery of the respective mortgage loan
documents to the Assignee or its designee and shall inure to the benefit of
the
Assignee and its assigns notwithstanding any restrictive or qualified
endorsement or assignment. Upon the discovery by the Assignor or the
Assignee and its assigns of a breach of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
to the other parties to this Assignment Agreement, and in no event later than
two (2) Business Days from the date of such discovery. It is
understood and agreed that the obligations of the Assignor set forth in
12
Section
10 to repurchase or, in limited circumstances, substitute a Mortgage Loan
constitute the sole remedies available to the Assignee and its assigns on their
behalf respecting a breach of the representations and warranties contained
in
Sections 7 and 8. It is further understood and agreed that, except as
specifically set forth in Sections 7 and 8, the Assignor shall be deemed not
to
have made the representations and warranties in Section 8(g) with respect to,
and to the extent of, representations and warranties made, as to the matters
covered in Section 8(g), by the Servicer in the Sale 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 7 and 8, and no other affiliate of the Assignor has made any
representations or warranties of any kind to the Assignee.
9. 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).
10. Repurchase
of Mortgage Loans. (a) [RESERVED].
(b) Upon
discovery or notice of any breach by the Assignor of any representation,
warranty or covenant under this Assignment Agreement that materially and
adversely affects the value of any Mortgage Loan or the interest of the Assignee
therein (it being understood that any such defect or breach shall be deemed
to
have materially and adversely affected the value of the related Mortgage Loan
or
the interest of the Assignee therein if the Assignee incurs a loss as a result
of such defect or breach), the Assignee promptly shall request that the Assignor
cure such breach and, if the Assignor does not cure such breach in all material
respects within sixty (60) days from the date on which it is notified of the
breach, the Assignee may enforce the Assignor’s obligation hereunder to purchase
such Mortgage Loan from the Assignee at the Repurchase Price as defined in
the
Sale Agreement or, in limited circumstances (as set forth below), substitute
such mortgage loan for a Substitute Mortgage Loan (as defined
below). Notwithstanding the foregoing, however, if such breach is a
Qualification Defect as defined in the Sale Agreement, such cure or repurchase
must take place within sixty (60) days of discovery of such Qualification
Defect.
The
Assignor shall have the option, but is not obligated, to substitute a Substitute
Mortgage Loan for a Mortgage Loan, rather than repurchase the Mortgage Loan
as
provided above, by removing such Mortgage Loan and substituting in its place
a
Substitute Mortgage Loan or Loans and providing the Substitution Adjustment
Amount, 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.
13
In
the
event the Servicer has breached a representation or warranty under the Sale
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 Sale 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 Sale 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 Sale 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 each of the Servicing Agreement and the Sale Agreement,
but only insofar as each such agreement relates to such Mortgage
Loan.
Except
as
specifically set forth herein, the Assignee shall have no responsibility to
enforce any provision of this Assignment Agreement, to oversee compliance hereof
or to take notice of any breach or default thereof.
For
purposes of this Section, “Deleted Mortgage Loan” and “Substitute Mortgage Loan”
shall be defined as set forth below.
“Deleted
Mortgage Loan” A Mortgage Loan which is to be, pursuant to this
Section 10, replaced or to be replaced by the Assignor with a Substitute
Mortgage Loan.
“Substitute
Mortgage Loan” A Mortgage Loan substituted by the Assignor for a
Deleted Mortgage Loan which must, on the date of such substitution, (i) have
an
outstanding principal balance, after deduction of all scheduled payments due
in
the month of substitution (or in the case of a substitution of more than one
Mortgage Loan for a Deleted Mortgage Loan, an aggregate principal balance),
not
in excess of the Stated Principal Balance of the Deleted Mortgage Loan; (ii)
be
accruing interest at a rate no lower than and not more than 2% per annum higher
than that of the Deleted Mortgage Loan; (iii) have a remaining term to maturity
not greater than and not more than one year less than that of the Deleted
Mortgage Loan; (iv) be of the same type as the Deleted Mortgage Loan (i.e.,
fixed-rate or adjustable-rate with same periodic rate cap, lifetime rate cap,
and index); and (v) comply with each representation and warranty set forth
in
Section 3.02 of the Sale Agreement.
14
“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.
11. Continuing
Effect. Except as contemplated hereby, the Servicing Agreement
and the Sale Agreement shall remain in full force and effect in accordance
with
their respective terms.
12. Governing
Law.
THIS
ASSIGNMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF).
EACH
PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND
ALL
RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON,
OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS ASSIGNMENT AGREEMENT, OR
ANY
OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS
OF SUCH PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER
INTO THIS ASSIGNMENT AGREEMENT.
13. Notices. Any
notices or other communications permitted or required hereunder or under the
Servicing Agreement or the Sale 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,
GreenPoint
Mortgage Funding, Inc.
▇▇▇
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇
or
such
other address as may hereafter be furnished by the Servicer;
15
(b) in
the
case of the Assignee,
GS
Mortgage
Securities Corp.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇
Tel.:
(▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
With
a copy
to:
GS
Mortgage
Securities Corp.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Tel.: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished by the Assignee, and
(c) in
the
case of the Assignor,
▇▇▇▇▇▇▇
Sachs
Mortgage Company
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Tel.: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished by the Assignor.
14. Counterparts. This
Assignment Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same instrument.
15. Definitions. Any
capitalized term used but not defined in this Assignment Agreement has the
meaning assigned thereto in the Servicing Agreement or the Sale Agreement,
as
applicable.
16. Third
Party Beneficiary. The parties agree that the Trustee and Master
Servicer are intended to be, and shall have the rights of, a third party
beneficiary of this Assignment Agreement.
[SIGNATURES
FOLLOW]
16
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
the
day and year first above written.
| ▇▇▇▇▇▇▇ SACHS MORTGAGE COMPANY | |||
|
|
By:
|
▇▇▇▇▇▇▇
▇▇▇▇▇ Real Estate Funding
Corp.,
its General
Partner
|
|
|
|
By:
|
/s/ ▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇ ▇▇▇▇▇ | |||
| Title: Vice President | |||
| GS MORTGAGE SECURITIES CORP. | |||
|
|
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇ | |
| Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇ | |||
| Title: Vice President | |||
| GREENPOINT MORTGAGE FUNDING, INC. | |||
|
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇ | |
| Name: ▇▇▇▇▇ ▇▇▇▇▇ | |||
| Title: Vice President | |||
EXHIBIT
1
Mortgage
Loan Schedule
[On
File
with the Securities Administrator as provided by the Depositor]
1-1
EXHIBIT
2
Servicing
Agreement
[On
File
with the Depositor]
2-1
EXHIBIT
3
Sale
Agreement
[On
File
with the Depositor]
3-1
EXHIBIT
4
Guarantee
[On
File
with the Depositor]
4-1
EXHIBIT
5
Exhibit
E to the Servicing Agreement
EXHIBIT
E
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by Fifth Third Mortgage Company
shall
address, at a minimum, the criteria identified as below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
|
General
Servicing Considerations
|
||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance
with the
terms of the transaction agreements.
|
X
|
|
Cash
Collection and Administration
|
||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial
bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
5-1
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities
related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their
original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
|
Investor
Remittances and Reporting
|
||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission,
are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
5-2
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with
timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the
Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
|
Pool
Asset Administration
|
||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the
transaction
agreements or related mortgage loan documents.
|
X
|
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements
in the
transaction agreements.
|
X
|
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow)
in
accordance with the related mortgage loan documents.
|
X
|
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
5-3
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period
a mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid,
or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
5-4
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|
|
Reference
|
Criteria
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set
forth in
the transaction agreements.
|
|
|
[NAME
OF INTERIM SERVICER]
[SUBSERVICER]
|
|
|
Date:
___________________________________
|
By:
Name:
Title:
5-5
EXHIBIT
6
Exhibit
D-2 to the Servicing Agreement
EXHIBIT
D-2
FORM
OF
ANNUAL CERTIFICATION
|
|
Re:
|
The
[
|
]
agreement dated as of [
|
l,
200[ ] (the “Agreement”), among [IDENTIFY
PARTIES]
|
I,
____________________________, the _______________________ of [NAME OF COMPANY]
(the “Company”), certify to [the Purchaser], [the Depositor], and the [Master
Servicer] [Securities Administrator] [Trustee], and their officers, with the
knowledge and intent that they will rely upon this certification,
that:
(1) I
have reviewed the servicer compliance statement of the Company provided in
accordance with Item 1123 of Regulation AB (the “Compliance Statement”), the
Annual Independent Public Accountants’ Servicing Report (as defined in the
Agreement), and all servicing reports, officer’s certificates and other
information relating to the servicing of the Mortgage Loans by the Company
during 200[ ] that were delivered by the Company to the [Depositor] [Master
Servicer] [Securities Administrator] [Trustee] pursuant to the Agreement
(collectively, the “Company Servicing Information”);
(2) Based
on my knowledge, the Company Servicing Information, taken as a whole, does
not
contain any untrue statement of a material fact or omit to state a material
fact
necessary to make the statements made, in the light of the circumstances under
which such statements were made, not misleading with respect to the period
of
time covered by the Company Servicing Information;
(3) Based
on my knowledge, all of the Company Servicing Information required to be
provided by the Company under the Agreement has been provided to the [Depositor]
[Master Servicer] [Securities Administrator] [Trustee];
(4) I
am responsible for reviewing the activities performed by the Company as servicer
under the Agreement, and based on my knowledge and the compliance review
conducted in preparing the Compliance Statement and except as disclosed in
the
Compliance Statement and the Annual Independent Public Accountants’ Servicing
Report, the Company has fulfilled its obligations under the Agreement in all
material respects; and
(5) The
Compliance Statement required to be delivered by the Company pursuant to the
Agreement, and the Annual Independent Public Accountants’ Servicing Report
required to be provided by the Company and by any Subservicer and Subcontractor
pursuant to the Agreement, have been provided to the [Depositor] [Master
Servicer]. Any material instances of noncompliance described in such
reports have been disclosed to the [Depositor] [Master Servicer]. Any material
instance of noncompliance with the Servicing Criteria has been disclosed in
such
reports.
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