GSAA HOME EQUITY TRUST 2007-8 ASSET-BACKED CERTIFICATES SERIES 2007-8 ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GOLDMAN SACHS MORTGAGE COMPANY, as Assignor GS MORTGAGE SECURITIES CORP., as Assignee and FIFTH THIRD MORTGAGE COMPANY as...
Exhibit
99.5
Execution
Copy
ASSET-BACKED
CERTIFICATES
SERIES
2007-8
among
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY,
as
Assignor
GS
MORTGAGE SECURITIES CORP.,
as
Assignee
and
FIFTH
THIRD MORTGAGE COMPANY
as
Servicer
Dated
as of
July
30, 2007
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated July 30, 2007
(“AssignmentAgreement”), among ▇▇▇▇▇▇▇ Sachs Mortgage Company
(“Assignor”), GS Mortgage Securities Corp. (“Assignee”) and Fifth
Third Mortgage Company (“FifthThird” or the
“Servicer”):
WHEREAS,
the Assignor and the Servicer have entered into the Mortgage Loan Sale and
Servicing Agreement, dated as of March 1, 2007 (the “Sale andServicing
Agreement”), pursuant to which the Servicer sold to the Assignor certain
mortgage loans listed on the mortgage loan schedule attached as an exhibit
to
the Sale and Servicing Agreement;
WHEREAS,
the Assignee has agreed on certain terms and conditions to purchase from the
Assignor certain of the mortgage loans (the “Mortgage Loans”), which are
subject to the provisions of the Sale and Servicing Agreement and are listed
on
the mortgage loan schedule attached as Exhibit 1 hereto (the “Mortgage
Loan Schedule”); and
WHEREAS,
pursuant to a Master Servicing and Trust Agreement, dated as of July 1, 2007
(the “Trust Agreement”), among GS Mortgage Securities Corp., as
depositor, Citibank, N.A., as trustee (in such capacity, the “Trustee”)
and as a custodian, Deutsche Bank National Trust Company, as a custodian, The
Bank of New York Trust Company, National Association, as a custodian, U.S.
Bank
National Association, as a custodian, and ▇▇▇▇▇ Fargo Bank, National
Association, as master servicer (in such capacity, the “Master
Servicer”), securities administrator and as a custodian, the Assignee will
transfer the Mortgage Loans to the Trustee, together with the Assignee’s rights
under the Sale and Servicing Agreement, to the extent relating to the Mortgage
Loans (other than the rights of the Assignor (and if applicable its affiliates,
officers, directors and agents) to indemnification thereunder).
NOW
THEREFORE, in consideration of the mutual promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Assignment
and Assumption.
A. The
Assignor hereby assigns to the Assignee all of the right, title and interest
of
the Assignor, as purchaser, in, to and under (a) the Mortgage Loans and
(b) except as described below, the Sale and Servicing Agreement, solely
insofar as the Sale and Servicing Agreement relates 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 Sale and Servicing
Agreement, to the extent relating to the Mortgage Loans, from and after the
date
hereof, and the Servicer hereby acknowledges such assignment and assumption
and
hereby agrees to the release of the Assignor from any obligations under the
Sale
and Servicing Agreement from and after the date hereof, to the extent relating
to the Mortgage Loans.
B. The
Assignor specifically reserves and does not assign to the Assignee hereunder
(i)
any and all right, title and interest in, to and under and any obligations
of
the Assignor with respect to any mortgage loans subject to the Sale and
Servicing Agreement that are not the Mortgage Loans set forth on the Mortgage
Loan Schedule and are not the subject of this Assignment Agreement, (ii) any
rights and obligations of the Assignor pursuant to the Sale and Servicing
Agreement arising prior to the date hereof or (iii) the rights and obligations
of the Owner under the following sections of the Servicing
Agreement: Section 7.05 (relating to the Owner’s right to premium
recapture), Section 11.21 (relating to the Owner’s right to receive information
from the Company), Section 13.01 (relating to the Owner’s right to terminate the
Company) and Section 29 (relating to the Owner’s obligation to execute certain
confidentiality agreements).
C. The
Assignor represents and warrants to the Assignee that the Assignor has not
taken
any action which would serve to impair or encumber the Assignor’s ownership
interest in the Mortgage Loans since the date of the Sale and Servicing
Agreement.
D. The
Servicer and the Assignor shall have the right to amend, modify or terminate
the
Sale and Servicing Agreement without the joinder of the Assignee with respect
to
the 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 and Servicing Agreement. Only in so far as it relates
to the Mortgage Loans, the Company and the Assignor hereby amend the Sale and
Servicing Agreement as follows:
A. a
new definition of “Annual Independent Public Accountants’ Servicing Report” will
be added to Section 1 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.”
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 a Saturday or Sunday, or a day on which
banking and savings and loan institutions (i) in any state in which the Servicer
is located, (ii) in any state in which the Custodial Account is maintained,
are authorized or obligated by law or executive order to be closed or (iii)
in
the states of California, Maryland, Minnesota or New York.”
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C. a
new definition of “Qualified Depository” shall be added to Section 1 in the
appropriate alphabetical order which shall read as follows:
“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 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.”
C. a
new section, Section 35, will be added immediately following Subsection 34.07
which shall read as follows:
“Section
35. Third Party
Beneficiary
▇▇▇▇▇
Fargo Bank, National Association, as master servicer, securities administrator
and as a custodian under the Master Servicing and Trust Agreement, dated as
of
July 1, 2007, among GS Mortgage Securities Corp., as depositor, Citibank, N.A.,
as trustee, U.S. Bank National Association, as a custodian, Deutsche Bank
National Trust Company, as a custodian, The Bank of New York Trust Company,
National Association, as a custodian and ▇▇▇▇▇ Fargo Bank, National Association,
shall be considered a third-party beneficiary to this Agreement entitled to
all
of the rights and benefits accruing to it as if it were a direct party to this
Agreement.”
D. the
following sentence shall be added to the end of the first paragraph of Section
11.04 as follows:
“If
the
Custodial Account ceases to be eligible as described above, the Servicer shall
transfer the Custodial Account within thirty (30) days to a substitute Qualified
Depository.
E.
a new paragraph shall be added immediately following the first paragraph of
Section 11.04 as follows:
“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.”
F. Exhibit
17 shall be deleted in its entirety and be replaced with a new “Exhibit 17”
which shall be as set forth in Exhibit 3 attached to this Assignment
Agreement.
G. Subsection
11.20 will be amended by adding a new paragraph as follows:
4
“Notwithstanding
the foregoing provisions of Section 11.20, (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.
3. Accuracy
of the Sale and Servicing Agreement. The Servicer and the
Assignor represent and warrant to the Assignee that (i) attached hereto as
Exhibit 2 is a true, accurate and complete copy of the Sale and Servicing
Agreement, (ii) such Sale and Servicing Agreement is in full force and effect
as
of the date hereof, (iii) except as provided in Section 3 above the Sale and
Servicing Agreement has not been modified in any respect and (iv) no notice
of
termination has been given to the Servicer under the Sale and Servicing
Agreement.
4. Recognition
of the 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 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 Sale and
Servicing Agreement, the terms of which are incorporated herein by
reference. It is the intention of the Assignor, Servicer and Assignee
that the Sale and Servicing Agreement shall be binding upon and inure to the
benefit of the Servicer and the Assignee and their successors and
assigns.
5
5. Representations
and Warranties of the Assignee. The Assignee hereby represents
and warrants to the Assignor as follows:
A. Decision
to Purchase. The Assignee represents and warrants that it is a
sophisticated investor able to evaluate the risks and merits of the transactions
contemplated hereby, and that it has not relied in connection therewith upon
any
statements or representations of the Assignor or the Servicer other than those
contained in the Servicing Agreement, the Sale and Servicing Agreement or this
Assignment Agreement.
B. Authority. The
Assignee hereto represents and warrants that it is duly and legally authorized
to enter into this Assignment Agreement and to perform its obligations hereunder
and under the Servicing Agreement and the Sale and Servicing
Agreement.
C. Enforceability. The
Assignee hereto represents and warrants that this Assignment Agreement has
been
duly authorized, executed and delivered by it and (assuming due authorization,
execution and delivery thereof by each of the other parties hereto) constitutes
its legal, valid and binding obligation, enforceable in accordance with its
terms, except as such enforcement may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles (regardless of whether
such
enforcement is considered in a proceeding in equity or at law).
6. Representations
and Warranties of the Assignor. The Assignor hereby represents
and warrants to the Assignee as follows:
A. The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its incorporation;
B. The
Company has full power and authority to execute, deliver and perform its
obligations under this Assignment Agreement and has full power and authority
to
perform its obligations under the Sale and Servicing Agreement. The
execution by the Company of this Assignment Agreement is in the ordinary course
of the Company’s business and will not conflict with, or result in a breach of,
any of the terms, conditions or provisions of the Company’s charter or bylaws or
any legal restriction, or any material agreement or instrument to which the
Company is now a party or by which it is bound, or result in the violation
of
any law, rule, regulation, order, judgment or decree to which the Company or
its
property is subject. The execution, delivery and performance by the
Company of this Assignment Agreement have been duly authorized by all necessary
corporate action on part of the Company. This Assignment Agreement
has been duly executed and delivered by the Company, and, upon the due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability may
be
limited by bankruptcy, reorganization, insolvency, moratorium or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
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C. No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
the Company in connection with the execution, delivery or performance by the
Company of this Assignment Agreement;
D. There
is no action, suit, proceeding or investigation pending or threatened against
the Company, before any court, administrative agency or other tribunal, which
would draw into question the validity of this Assignment Agreement or the Sale
and Servicing Agreement, or which, either in any one instance or in the
aggregate, would result in any material adverse change in the ability of the
Company to perform its obligations under this Assignment Agreement or the Sale
and Servicing Agreement, and the Company is solvent; and
E. Pursuant
to Section 15 of the Sale and Servicing Agreement, the Company hereby
represents and warrants, for the benefit of the Assignor, the Assignee and
the
Trust, that the representations and warranties set forth in Section 7.01
and Section 7.02 of the Sale and Servicing Agreement are true and correct
as of the date hereof as if such representations and warranties were made on
the
date hereof unless otherwise specifically stated in such representations and
warranties.
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 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.
7
E. Georgia
Fair Lending Act. No Mortgage Loan is secured by a property in
the state of Georgia and originated between October 1, 2002 and
March 7, 2003.
F. Credit
Reporting. The Assignor will cause to be fully furnished, in
accordance with the Fair Credit Reporting Act and its implementing regulations,
accurate and complete information (i.e., favorable and unfavorable) on Mortgagor
credit files to Equifax, Experian and Trans Union Credit Information Company
(three of the credit repositories), on a monthly basis.
G. Bring
Down. To the Assignor’s knowledge, with respect to each Mortgage
Loan, no event has occurred from and after the closing date set forth in the
Sale and Servicing Agreement to the date hereof that would cause any of the
representations and warranties relating to such Mortgage Loan set forth in
Section 7.02 of the Sale and Servicing Agreement to be untrue in any
material respect as of the date hereof as if made on the date
hereof. With respect to those representations and warranties which
are made to the best of the Assignor's knowledge, if it is discovered by the
Assignor that the substance of such representation and warranty is inaccurate,
notwithstanding the Assignor's lack of knowledge with respect to the substance
of such representation and warranty, such inaccuracy shall be deemed a breach
of
the applicable representation and warranty.
It
is
understood and agreed that the representations and warranties set forth in
Sections 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 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 and Servicing Agreement
(or
any officer’s certificate delivered pursuant thereto).
It
is
understood and agreed that, with respect to the Mortgage Loans, the Assignor
has
made no representations or warranties to the Assignee other than those contained
in Sections 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).
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10. Repurchase
of Mortgage Loans.
A. To
the extent that FifthThird is required under the Sale and Servicing Agreement
or
any related agreement to which FifthThird and Assignor are parties to repurchase
any Mortgage Loan on account of an Early Payment Default, the Assignee shall
be
entitled as a result of the assignments hereunder to enforce such obligation
directly against FifthThird as required by and in accordance with the Sale
and
Servicing Agreement or such related agreement, as applicable. For
purposes of this Section, “Early Payment Default” shall mean any provision of
the Sale and Servicing Agreement or any related agreement to which FifthThird
and Assignor are parties that is designated as an “early payment default”
provision of otherwise provides for the repurchase of any Mortgage Loan in
the
event of a default in the first (or such other number as may be specified in
such provision) scheduled payment due under such Mortgage Loan after the closing
or other date specified in such agreement.
B. Upon
discovery or notice of any breach by the Assignor of any representation,
warranty or covenant under this Assignment Agreement that materially and
adversely affects the value of any Mortgage Loan or the interest of the Assignee
therein (it being understood that any such defect or breach shall be deemed
to
have materially and adversely affected the value of the related Mortgage Loan
or
the interest of the Assignee therein if the Assignee incurs a loss as a result
of such defect or breach), the Assignee promptly shall request that the Assignor
cure such breach and, if the Assignor does not cure such breach in all material
respects within 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 and Servicing Agreement or, in limited circumstances (as set forth below),
substitute such mortgage loan for a Substitute Mortgage Loan (as defined
below). Notwithstanding the foregoing, however, if such breach is a
Qualification Defect as defined in the Sale and Servicing 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.
In
the
event the Servicer has breached a representation or warranty under the Sale
and
Servicing Agreement that is substantially identical to, or covers the same
matters as, a representation or warranty breached by the Assignor hereunder,
the
Assignee shall first proceed against the Servicer to cure such breach or
purchase such mortgage loan from the Trust. If the Servicer does not
within ninety (90) days after notification of the breach, take steps to cure
such breach (which may include certifying to progress made and requesting an
extension of the time to cure such breach, as permitted under the Sale and
Servicing Agreement) or purchase the Mortgage Loan, the Trustee shall be
entitled to enforce the obligations of the Assignor hereunder to cure such
breach or to purchase or substitute for the Mortgage Loan from the
Trust.
9
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 and Servicing Agreement, by
removing such Mortgage Loan and substituting in its place a Substitute Mortgage
Loan or Loans, provided that any such substitution shall be effected not later
than ninety (90) days from the date on which it is notified of the
breach.
In
the
event of any repurchase or substitution of any Mortgage Loan by the Assignor
hereunder, the Assignor shall succeed to the rights of the Assignee to enforce
the obligations of the Servicer to cure any breach or repurchase such Mortgage
Loan under the terms of the Sale and Servicing Agreement with respect to such
Mortgage Loan. In the event of a repurchase or substitution of any
Mortgage Loan by the Assignor, the Assignee shall promptly deliver to the
Assignor or its designee the related Mortgage File and shall assign to the
Assignor all of the Assignee’s rights under each of the Servicing Agreement and
the Sale and Servicing 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 and Servicing Agreement.
“Substitution
Adjustment Amount” means with respect to any Mortgage Loan, the amount remitted
by GSMC on the applicable Distribution Date which is the difference between
the
outstanding principal balance of a Substitute Mortgage Loan as of the date
of
substitution and the outstanding principal balance of the Deleted Mortgage
Loan
as of the date of substitution.
10
11. Remedies
for Breach of Representations and Warranties. The Servicer hereby
acknowledges and agrees that the remedies available to the Assignor and the
Assignee in connection with any breach of the representations and warranties
made by the Servicer set forth herein shall be as set forth in
Subsection 7.03 of the Sale and Servicing Agreement as if they were
set forth herein (including without limitation the repurchase and indemnity
obligations set forth therein).
12. Continuing
Effect. Except as contemplated hereby, the Sale and Servicing
Agreement shall remain in full force and effect in accordance with their
respective terms.
13. 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.
14. Notices. Any
notices or other communications permitted or required hereunder or under the
Sale and Servicing Agreement shall be in writing and shall be deemed
conclusively to have been given if personally delivered at or mailed by
registered mail, postage prepaid, and return receipt requested or transmitted
by
telex, telegraph or telecopier and confirmed by a similar mailed writing,
to:
A. in
the case of the Servicer,
Fifth
Third Mortgage Company
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
Attention:
[______]
or
such
other address as may hereafter be furnished by the Servicer;
B. in
the case of the Assignee,
11
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,
▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Company
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Tel.: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished by the Assignor.
15. 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.
16. Definitions. Any
capitalized term used but not defined in this Assignment Agreement has the
meaning assigned thereto in the Sale and Servicing Agreement, as
applicable.
17. 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.
[SIGNATURE
PAGE FOLLOWS]
12
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
the
day and year first above written.
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE
COMPANY
By: ▇▇▇▇▇▇▇
Sachs Real Estate Funding
Corp.,
its General Partner
By:
/s/ ▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇▇▇▇▇
▇▇▇▇▇▇▇
Title:
Vice
President
GS
MORTGAGE SECURITIES CORP.
By:
/s/ ▇▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇▇
▇.
▇▇▇▇▇
Title:
Vice
President
FIFTH
THIRD MORTGAGE COMPANY
By:
/s/ ▇▇▇▇▇▇
▇▇▇▇▇▇
Name:
▇▇▇▇▇▇
▇▇▇▇▇▇
Title:
Assistant
Vice President
FifthThird
Step 1
AAR
EXHIBIT
1
Mortgage
Loan Schedule
[On
File
with the Securities Administrator as provided by the Depositor]
1-1
EXHIBIT
2
Sale
and Servicing Agreement
[On
File
with the Depositor]
2-1
EXHIBIT
3
Exhibit
17 to the Servicing Agreement
EXHIBIT
17
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
|
3-5
|
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
|
3-5
|
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
|
3-5
|
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
|
3-5
|
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:
3-5