GSAA HOME EQUITY TRUST 2007-9 ASSET-BACKED CERTIFICATES SERIES 2007-9 ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GOLDMAN SACHS MORTGAGE COMPANY, as Assignor GS MORTGAGE SECURITIES CORP., as Assignee and AVELO MORTGAGE, L.L.C. as the...
EXHIBIT
99.2
EXECUTION
COPY
ASSET-BACKED
CERTIFICATES
SERIES
2007-9
among
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY,
as
Assignor
GS
MORTGAGE SECURITIES CORP.,
as
Assignee
and
AVELO
MORTGAGE, L.L.C.
as
the Company
Dated
as of
September
28, 2007
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT, dated September 28, 2007 (this
“Agreement”), among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company (“Assignor”),
GS Mortgage Securities Corp. (“Assignee”) and Avelo Mortgage, L.L.C. (the
“Company”) (the “Step 1 Assignment Agreement”).
For
and
in consideration of the mutual promises contained herein and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. Assignment,
Assumption and Conveyance.
The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
all of the right, title and interest (other than those rights specifically
retained by the Assignor pursuant to this Agreement) of the Assignor, as
purchaser, in, to and under (a) certain mortgage loans acquired through the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Residential Mortgage Conduit Program (the “Mortgage Loans”)
listed on the schedule (the “Mortgage Loan Schedule”) attached hereto as
Exhibit A, and (b) solely insofar as it relates to the Mortgage Loans,
that certain Flow Servicing Agreement, dated as of January 1, 2006 (the
“Servicing Agreement”), by and between the Assignor, as owner (the
“Owner”) and the Company. The Assignor hereby agrees that it
will (i) deliver possession of notes evidencing the Mortgage Loans to, or at
the
direction of, the Assignee or its designee and (ii) take in a timely manner
all
necessary steps under all applicable laws to convey and to perfect the
conveyance of the Mortgage Loans as required under the Trust Agreement (as
defined below).
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 Servicing
Agreement that are not the Mortgage Loans set forth on the Mortgage Loan
Schedule and are not the subject of this Agreement, (ii) any rights and
obligations of the Assignor pursuant to the 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 6.02 (relating
to the Owner’s right to terminate the Company), Section 5.01 (relating to the
Owner’s right to receive information from the Company), Section 11.13 (relating
to the Owner’s right to consent to certain solicitation activities) and Section
11.16 (relating to the Owner’s obligation to execute certain confidentiality
agreements).
The
Assignee hereby assumes all of the Assignor’s obligations under the Mortgage
Loans and the Servicing Agreement solely insofar as such obligations relate
to
the Mortgage Loans, other than the obligations set forth in clauses (ii) and
(iii) of the preceding paragraph.
The
parties hereto agree that with respect to the Mortgage Loans being serviced
under the Servicing Agreement the Servicing Fee Rate for the Mortgage Loans
shall be as specified on the Mortgage Loan Schedule.
2. Recognition
of the Company.
From
and
after the date hereof (the “Securitization Closing Date”), the Company
shall and does hereby recognize that the Assignee will transfer the Mortgage
Loans and assign its rights under the Servicing Agreement (solely to the extent
set forth herein) and this Agreement to Citibank, N.A. (“Citibank”), as
trustee (including its successors in interest and any successor trustees under
the Trust Agreement, the “Trustee”), of the GSAA Home Equity Trust 2007-9
(the “Trust”) created pursuant to a Master Servicing and Trust Agreement,
dated as of September 1, 2007 (the “Trust Agreement”), among the
Assignee, the 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, N.A., as master
servicer (including its successors in interest and any successor servicer under
the Trust Agreement, in such capacity, the “Master Servicer”), securities
administrator and as a custodian.
The
Company hereby acknowledges and agrees that from and after the date hereof
(i)
the Trust will be the owner of the Mortgage Loans and the Company will be the
servicer of the Mortgage Loans on or after the applicable Transfer Date pursuant
to the terms set forth in the Servicing Agreement as modified hereby, (ii)
the
Company shall look solely to the Trust (including the Trustee, the Securities
Administrator and the Master Servicer acting on the Trust’s behalf) for
performance of any obligations of the Assignor under the Mortgage Loans and
the
Servicing Agreement (solely insofar as it relates to the Mortgage Loans) (except
for such obligations of the Assignor retained by the Assignor hereunder), (iii)
the Trust (including the Trustee, the Securities Administrator and the Master
Servicer acting on the Trust’s behalf) shall have all the rights and remedies
available to the Assignor, insofar as they relate to (A) the Mortgage Loans,
under the applicable purchase agreement pursuant to which the Owner purchased
the related Mortgage Loans from the related Seller, including, without
limitation, the enforcement of the document delivery requirements set forth
in
Section 5(b) of the related purchase agreement and (B) the Servicing Agreement
and shall be entitled to enforce all of the obligations of the Company
thereunder insofar as they relate to the Mortgage Loans, including without
limitation, the remedies for breaches of representations and warranties set
forth in Article IX of the Servicing Agreement (except for the rights and
remedies retained by the Assignor hereunder), (iv) all references to the Owner
under the Servicing Agreement insofar as they relate to the Mortgage Loans
shall
be deemed to refer to the Trust (except to the extent of the rights and
obligations retained by the Assignor hereunder) (including the Trustee and
the
Company acting on the Trust’s behalf) and (v) the Mortgage Loans will be part of
a REMIC, and the Company 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) after the applicable Transfer Date 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). Neither the
Company nor the Assignor shall amend or agree to amend, modify, waive, or
otherwise alter any of the terms or provisions of the Servicing Agreement which
amendment, modification, waiver or other alteration would in any way affect
the
Mortgage Loans or the Company’s performance
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under
the Servicing Agreement with respect to the Mortgage Loans without the prior
written consent of the Master Servicer.
3. Modification
of the Servicing Agreement. Only in so far as it relates to the
Mortgage Loans, the Company and the Assignor hereby amend the Servicing
Agreement as follows:
(a) The
definition of “Servicing Fee Rate” set forth in Article I shall be deleted in
its entirety and replaced with the following:
“Servicing
Fee
Rate: As set forth on the Mortgage Loan Schedule attached as
Exhibit A to the Assignment, Assumption and Recognition Agreement, dated as
of
September 28, 2007, among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, as Assignor, GS
Mortgage Securities Corp., as Assignee and Avelo Mortgage, L.L.C., as the
Company. ”
(b) a
new
definition of “Privacy Laws” will be added in the appropriate alphabetical order
which shall read as follows:
“Privacy
Laws: Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act of 1999, as amended, and all
applicable regulations promulgated thereunder.”
(c) the
second paragraph of Section 2.01 shall be deleted and replaced as
follows:
“Subject
only to the Accepted Servicing Practices and the terms of this Agreement and
of
the respective Mortgage Loans, the Servicer shall have full power and authority
to do or cause to be done any and all things in connection with such servicing
and administration which it may deem necessary or desirable. Without
limiting the generality of the foregoing, the Servicer in its own name or in
the
name of the Owner, is hereby authorized and empowered by the Owner when the
Servicer believes it appropriate in its best judgment in accordance with
Accepted Servicing Practices, to execute and deliver any and all instruments
of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Mortgage Loans and the
Mortgaged Properties and to institute foreclosure proceedings or obtain a deed
in lieu of foreclosure so as to convert the ownership of such properties, and
to
hold or cause to be held title to such properties, in the name of the Servicer
on behalf of the Owner and without reference to the Owner except as otherwise
required by law. The Owner shall execute, at the written request of
the Servicer, and furnish to the Servicer such documents as are necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder, and the Owner hereby grants to the Servicer, and this
Agreement shall constitute, a power of attorney to carry out such duties
including a power of attorney to take title to Mortgaged Properties after
foreclosure on, in the name of the Servicer on behalf of the Owner and without
reference to the Owner except as otherwise required by law. Except as
otherwise provided herein, the Owner shall not be liable for the actions of
the
Servicer under such powers of attorney.
Notwithstanding
anything in this Agreement to the contrary, the Servicer shall not (i) permit
any modification with respect to any Mortgage Loan that would change the
Mortgage
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Interest
Rate, reduce or increase the principal balance (except for reductions resulting
from actual payments of principal) or change the final maturity date on such
Mortgage Loan (except for (A) a reduction of interest or principal payments
resulting from the application of the Servicemembers Civil Relief Act or any
similar state statutes or (B) as provided in Section 2.03, if the Mortgagor
is
in default with respect to the Mortgage Loan or such default is, in the judgment
of the Servicer, reasonably foreseeable) or (ii) except as provided in Section
2.03, waive any prepayment penalty or premium.”
(d) Section
2.03 shall be deleted and replaced as follows:
“The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable insurance policies insuring the Mortgage Loan or the related
Mortgaged Property, follow such collection procedures as it would follow with
respect to mortgage loans comparable to the Mortgage Loans and held for its
own
account. Consistent with the foregoing and Accepted Servicing
Practices, the Servicer may (i) waive any late payment charge or, if applicable,
any penalty interest, or (ii) extend the Due Dates for the Monthly Payments
due
on a Mortgage Note for a period of not greater than 180 days; provided, that
any
extension pursuant to clause (ii) above shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation hereunder, except
as provided below. In the event of any such arrangement pursuant to
clause (ii) above, the Servicer shall make Monthly Advances on such Mortgage
Loan during such extension pursuant to Section 3.04 and in accordance with
the
amortization schedule of such Mortgage Loan without modification thereof by
reason of such arrangements; provided that the Servicer shall not be obligated
to make Monthly Advances which the Servicer determines to be Nonrecoverable
Advances. Notwithstanding the foregoing, in the event that any
Mortgage Loan is in default or, in the judgment of the Servicer, such default
is
reasonably foreseeable, the Servicer, consistent with the Accepted Servicing
Practices, may also waive, modify or vary any term of such Mortgage Loan
(including modifications that would change the Mortgage Interest Rate, forgive
the payment of principal or interest, extend the final maturity date of such
Mortgage Loan or waive, in whole or in part, a prepayment penalty or premium),
accept payment from the related Mortgagor of an amount less than the outstanding
principal balance in final satisfaction of such Mortgage Loan, or consent to
the
postponement of strict compliance with any such term or otherwise grant
indulgence to any Mortgagor (any and all such waivers, modifications, variances,
forgiveness of principal or interest, postponements, or indulgences collectively
referred to herein as “Forbearance”). The Servicer’s analysis
supporting any Forbearance and the conclusion that any Forbearance meets the
Accepted Servicing Practices shall be reflected in writing in the Servicing
File. Notwithstanding the foregoing, a Servicer may waive, in whole
or in part, a prepayment penalty or premium only under the following
circumstances: (i) such waiver relates to a default or a reasonably foreseeable
default and would, in the reasonable judgment of the Servicer, maximize recovery
of total proceeds taking into account the value of such prepayment penalty
or
premium and the related Mortgage Loan, (ii) such prepayment penalty or premium
is not permitted to be collected by applicable federal, state or local law
or
regulation, (iii) the collection of such prepayment penalty or premium would
be
considered “predatory” pursuant to written guidance published or issued by any
applicable federal, state or local regulatory authority acting in its official
capacity and having jurisdiction over such matters, (iv) the enforceability
thereof is limited (1) by bankruptcy, insolvency,
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moratorium,
receivership or other similar laws relating to creditor’s rights generally or
(2) due to acceleration in connection with a foreclosure or other involuntary
payment or (v) if the Servicer has not been provided with information sufficient
to enable it to collect the prepayment penalty or premium. If a
prepayment penalty or premium is waived other than as permitted in this Section
2.03, then the Servicer is required to pay the amount of such waived prepayment
penalty or premium, by depositing such amount into the Collection Account as
soon as possible after the date of payoff, but in no event later than five
(5)
Business Days from such date.”
(e) Section
2.05 shall be amended as follows:
(i) “and”
shall be deleted from the end of subsection (vii);
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(ii)
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subsection
(viii) shall be amended by deleting the “.” at the end of subsection
(viii) and replacing it with “;
and ”
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(iii)
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a
new subsection (ix) shall be added to Section 2.05 immediately following
subsection (viii) which shall read as
follows:
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| “(ix) | to reimburse itself for Monthly Advances of the Servicer’s funds made pursuant to Section 3.04, the Servicer’s right to reimburse itself pursuant to this subclause (ix) being limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance Proceeds and such other amounts as may be collected by the Servicer from the Mortgagor or otherwise relating to the Mortgage Loan, including amounts received on the related Mortgage Loan which represent late payments of principal and/or interest respecting which any such advance was made, it being understood that, in the case of any such reimbursement, the Servicer’s right thereto shall be prior to the rights of Owner.” |
(f) Section
2.17 shall be deleted and replaced as follows:
“The
Servicer, in its capacity as
servicer for each Mortgage Loan, agrees to fully furnish, in accordance with
the
Fair Credit Reporting Act and its implementing regulations, accurate and
complete information (e.g., favorable and unfavorable) on its borrower credit
files to Equifax, Experian and Trans Union Credit Information Company (three
of
the credit repositories), on a monthly basis. The Servicer will transmit
full-file credit reporting data for each Mortgage Loan pursuant to ▇▇▇▇▇▇ ▇▇▇
Guide Announcement 95-19 and for each Mortgage Loan, Servicer agrees it
shall report one of the following statuses each month as follows: new
origination, current, delinquent (30-, 60-, 90-days, etc.), foreclosed, or
charged-off.”
(g) the
third
paragraph of Section 2.18 shall be deleted and replaced as follows:
“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 one year after
title has been taken to such REO Property, unless (i) 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; provided however,
that the Servicer agrees not to sell or dispose of any such REO Property to
a
person who acquires such
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REO
Property using a purchase money mortgage. If a period longer than one
year is permitted under the foregoing sentence and is necessary to sell any
REO
Property, the Servicer shall report monthly to the Owner as to the progress
being made in selling such REO Property, and provided further, that if the
Servicer is unable to sell such REO Property within three years of acquisition,
the Servicer shall obtain an extension from the Internal Revenue
Service.”
(h) a
new
section, Section 2.25, will be added immediately following Section 2.24 which
shall read as follows:
“Section
2.25. Privacy Laws. The Servicer shall comply with
all provisions of the Privacy Laws relating to the Mortgage Loans, the related
borrowers and any “nonpublic personal information” (as defined in the Privacy
Laws) received by the Servicer incidental to the performance of its obligations
under this Agreement, including, maintaining adequate information security
procedures to protect such nonpublic personal information and providing all
privacy notices required by the Privacy Laws.”
(i) the
third
paragraph of Section 3.01 shall be deleted and replaced as follows:
“With
respect to any remittance received by the Owner after the Business Day on which
such payment was due, the Servicer shall pay to the Owner interest on any such
late payment at an annual rate equal to the Prime Rate, adjusted as of the
date
of each change, plus three percentage points, 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 payment
is made and shall cover the period commencing with the day the payment was
due
and ending with the Business Day on which such payment is made, both
inclusive. Such interest shall be remitted along with the
distribution payable on the next succeeding Remittance Date. 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.”
(j) Section
3.04 will be amended by adding a new paragraph as follows:
“In
the
event that the Servicer determines that any such advances are Non-Recoverable
Advances, the Servicer shall provide the Owner with a certificate signed by
an
officer of the Servicer evidencing such
determination. Notwithstanding the foregoing, the Servicer shall not
be permitted to make any advances from amounts held for future distribution,
and
instead shall be required to make all advances from its own funds, unless the
Servicer, its parent, or their respective successors hereunder shall have a
long
term credit rating of at least “A” by Fitch, Inc., or the equivalent rating of
another Rating Agency.”
(k) Section
11.13 shall be deleted in its entirety and replaced with the
following:
“Section
11.13 Solicitation. From
and after the related Transfer Date, the Servicer and the Owner agree that
the
Owner may take reasonable actions or permit or cause reasonable actions to
be
taken by its agents or affiliates (including the Servicer), or by any
independent contractors on the Owner’s behalf, to personally, by telephone or
mail, solicit the Mortgagor under any Mortgage Loan for any reasonable purpose,
including to refinance a Mortgage Loan,
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in
whole
or in part. It is understood and agreed that all rights and benefits
relating to the solicitation of any Mortgagors and the attendant rights, title
and interest in and to the list of such Mortgagors and data relating to their
Mortgages (including insurance renewal dates) shall be transferred to the Owner
pursuant hereto on the related Transfer Date and neither the Servicer nor the
Owner shall take any action to undermine these rights and
benefits. It is understood and agreed that promotions undertaken by
the Owner or any affiliate of the Owner (including the Servicer) which are
directed to the general public at large, including, without limitation, mass
mailing, internet and e-mail solicitations, based in all instances, on
commercially acquired mailing lists (which may not be targeted at the
Mortgagors) and newspaper, radio and television advertisements shall not
constitute solicitation under this Section. The Owner or any
affiliate of the Owner (including the Servicer) may at its discretion implement
general or targeted programs to solicit certain mortgagors of the mortgage
loans, including the mortgage loans held by the issuing entity of a
Securitization Transaction. Such programs will not specifically
target the mortgage loans held by the issuing entity of a certain Securitization
Transaction.“
(l) a
new
section, Section 11.17, will be added immediately following Section 11.16 which
shall read as follows:
“Section
11.17 Third-Party Beneficiary. ▇▇▇▇▇ Fargo Bank,
N.A., as master servicer under the Master Servicing and Trust Agreement, dated
as of September 1, 2007, among GS Mortgage Securities Corp., as depositor,
Citibank, N.A., as trustee, Deutsche Bank National Trust Company, as a
custodian, U.S. Bank National Association, as a custodian, The Bank of New
York
Trust Company, National Association, as a custodian and ▇▇▇▇▇ Fargo Bank, N.A.,
as master servicer, securities administrator and 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.”
(m) Section
2.04 shall be deleted in its entirety and replaced with the
following:
Section
2.04 Establishment of
and Deposits to Custodial Account.
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, in the form of time
deposit or demand accounts, titled “Avelo Mortgage, L.L.C., for the benefit of
GSAA Home Equity Trust 2007-9.” The Custodial Account shall be
established with a Qualified Depository acceptable to the Owner. The
Servicer and the Owner intend that the Custodial Account be a Special Deposit
Account. Any funds deposited in the Custodial Account shall at all
times be fully insured to the full extent permitted by the FDIC and as otherwise
acceptable to the Rating Agencies. Funds deposited in the Custodial
Account may be drawn on by the Servicer in accordance with
Section 2.05. The creation of any Custodial Account shall be
evidenced by a certification in the form of Exhibit 2 hereto, in the
case of an account established with the Servicer, or by a letter agreement
in
the form of Exhibit 3 hereto, in the case of an account held by a
depository other than the Servicer. A copy of such certification or
letter agreement shall be furnished to the Owner and, upon request, to any
subsequent Owner. If the depository in which the Custodial Account is
held ceases to be a Qualified Depository, the Servicer shall transfer the
Custodial Account within thirty (30) days to a substitute Qualified
Depository.
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The
Servicer shall deposit in the Custodial Account within two (2) Business Days
of
receipt thereof, and retain therein, the following collections received by
the
Servicer and payments made by the Servicer after the related Transfer Date,
other than payments of principal and interest due on or before the related
Subsequent Transfer Date, or received by the Servicer prior to the related
Subsequent Transfer Date but allocable to a period subsequent
thereto:
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a)
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all
payments on account of principal on the Mortgage Loans including
all
Principal Prepayments;
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b)
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all
payments on account of interest on the Mortgage Loans adjusted to
the
Mortgage Loan Remittance Rate;
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c)
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all
Liquidation Proceeds and any amounts received with respect to REO
Property;
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d)
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all
Insurance Proceeds including amounts required to be deposited pursuant
to
Section 2.10 (other than proceeds to be held in the Escrow Account
and applied to the restoration or repair of the Mortgaged Property
or
released to the Mortgagor in accordance with
Section 2.13);
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e)
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all
Condemnation Proceeds which are not applied to the restoration or
repair
of the Mortgaged Property or released to the Mortgagor in accordance
with
Section 2.13;
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f)
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any
amount required to be deposited in the Custodial Account pursuant
to
Section 2.09, 3.01, 4.01 or
4.02;
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g)
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any
amounts payable to the Owner in connection with the repurchase of
any
Mortgage Loan pursuant to the related Purchase
Agreement;
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h)
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with
respect to each Principal Prepayment in full or in part, the Prepayment
Interest Shortfall Amount, if any, for the month of distribution.
Such
deposit shall be made from the Servicer’s own funds, without reimbursement
therefore up to a maximum amount per month of the Servicing Fee actually
received for such month for the Mortgage
Loans;
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i)
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any
prepayment penalties received with respect to any Mortgage Loan;
and
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j)
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any
amounts required to be deposited by the Servicer pursuant to
Section 2.10 in connection with the deductible clause in any
blanket hazard insurance policy.
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9
The
foregoing requirements for deposit into the Custodial Account shall be
exclusive, it being understood and agreed that, without limiting the generality
of the foregoing, unless otherwise provided herein, payments in the nature
of
Ancillary Income, need not be deposited by the Servicer into the Custodial
Account. Any interest paid on funds deposited in the Custodial
Account by the depository institution shall accrue to the benefit of the
Servicer and the Servicer shall be entitled to retain and withdraw such interest
from the Custodial Account pursuant to Section 2.05.
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).
(n) The
definition of “Qualified Depository” set forth in Article I shall be deleted in
its entirety and replaced 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 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.”
4. Representations
and Warranties of the Company.
The
Company warrants and represents to and covenants with, the Assignor, the
Assignee and the Trust as of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its formation;
(b) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Servicing Agreement. The execution by the
Company of this 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 Agreement have been duly authorized by all necessary corporate action
on
part of the Company. This 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
10
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;
(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 Agreement or the consummation by it of the transaction
contemplated hereby;
(d) The
Company shall establish a Custodial Account and an Escrow Account under the
Servicing Agreement in favor of the Trust with respect to the Mortgage Loans
separate from the Custodial Account and Escrow Account previously established
under the Servicing Agreement in favor of the Assignor;
(e) 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 Agreement or the Servicing Agreement,
or
which, either in any one instance or in the aggregate, is likely to result
in
any material adverse change in the ability of the Company to perform its
obligations under this Agreement or the Servicing Agreement, and the Company
is
solvent;
(f) To
the
extent the Mortgage Loans have been transferred to the Company as of the date
hereof, the Company has serviced the Mortgage Loans in accordance with the
Servicing Agreement and has provided accurate “paid through” data (assuming the
correctness of all “paid through” data provided by the Assignor to the Company
at the time the Company began servicing the Mortgage Loans) with respect to
the
Mortgage Loans to the Assignor;
(g) To
the
extent the Mortgage Loans have been transferred to the Company as of the date
hereof, except as reflected in the “paid through” data delivered to the Assignor
(assuming the correctness of all “paid through” data provided by the Assignor to
the Company at the time the Company began servicing the Mortgage Loans), there
is no payment default existing under any Mortgage or any Mortgage Note as of
the
Securitization Closing Date; and
(h) To
the
extent the Mortgage Loans have been transferred to the Company as of the date
hereof, to the Company’s knowledge, there is no non-payment default existing
under any Mortgage or Mortgage Note, or any event which, with the passage of
time or with notice and the termination of any grace or cure period, would
constitute a non-payment default, breach, violation or event which would permit
acceleration as of the Securitization Closing Date.
Pursuant
to Section 9.01 of the 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 Article IX of the Servicing
Agreement are true and correct as of the date hereof as if such representations
and warranties were made on the date hereof.
5. Representations
and Warranties of the Assignor.
11
The
Assignor warrants and represents to the Assignee and the Trust as of date hereof
that:
(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) No
Waiver. The Assignor has not waived the performance by any
Mortgagor of any action, if such ▇▇▇▇▇▇▇▇▇’s failure to perform such action
would cause the Mortgage Loan to be in default, nor has the Company waived
any
default resulting from any action or inaction by such Mortgagor;
(d) 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;
(e) High
Cost. With respect to the Mortgage Loans, 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;
(f) 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;
(g) Qualified
Mortgage Loan. Each Mortgage Loan is a “qualified mortgage”
under Section 860G(a)(3) of the Internal Revenue Code of 1986, as amended;
and
(h) 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; and
12
(i) Prepayment
Premiums. To the Assignor’s knowledge, with respect to any
Mortgage Loan that contains a provision permitting imposition of a Prepayment
Premium prior to maturity: (a) prior to the Mortgage Loan’s origination, the
borrower agreed to such premium in exchange for a monetary benefit, including
but not limited to a rate or fee reduction; (b) prior to the Mortgage Loan’s
origination, the borrower was offered the option of obtaining a Mortgage Loan
that did not require payment of such a premium; (c) the prepayment premium
is
adequately disclosed to the borrower pursuant to applicable state and federal
law; (d) no Mortgage Loan originated on or after October 1, 2002 will impose
a
prepayment premium for a term in excess of three (3) years and any Mortgage
Loans originated prior to such date will not impose Prepayment Premiums in
excess of five (5) years; in each case unless the Mortgage Loan was modified
to
reduce the prepayment period to no more than three (3) years from the date
of
the note and the borrower was notified in writing of such reduction in
prepayment period; and (e) notwithstanding any state or federal law to the
contrary, the Company shall not impose such Prepayment Premium in any instance
when the Mortgage Loan is accelerated or paid off in connection with the workout
of a delinquent mortgage or due to the borrower’s default.
6. Remedies
for Breach of Representations and Warranties of the Assignor.
With
respect to the Mortgage Loans, the Assignor hereby acknowledges and agrees
that
in the event of any breach of the representations and warranties made by the
Assignor set forth in Section 5 hereof or in Section 2 of the Representations
and Warranties Agreement, dated as of September 28, 2007, between the Assignor
and Assignee (the “Representations and Warranties Agreement”) that
materially and adversely affects the value of the Mortgage Loans or the interest
of the Assignee or the Trust therein, within sixty (60) days of the earlier
of
either discovery by or notice to the Assignor of such breach of a representation
or warranty, it shall cure, purchase, cause the purchase of, or substitute
for
the applicable Mortgage Loan in the same manner and subject to the conditions
set forth in Section 3 of the Representations and Warranties
Agreement.
7. Miscellaneous.
(a) This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of law principles, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
(b) No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced, with the prior written consent of the
Trustee.
(c) This
Agreement shall inure to the benefit of (i) the successors and assigns of the
parties hereto and (ii) the Trust (including the Trustee and the Master Servicer
acting on the Trust’s behalf). Any entity into which the Assignor,
Assignee or the
13
Company
may be merged or consolidated shall, without the requirement for any further
writing, be deemed Assignor, Assignee or the Company, respectively,
hereunder.
(d) Each
of
this Agreement and the Servicing Agreement shall survive the conveyance of
the
Mortgage Loans to the Trust and the assignment of the purchase agreements and
the Servicing Agreement (to the extent assigned hereunder) by the Assignor
to
the Assignee and by Assignee to the Trust and nothing contained herein shall
supersede or amend the terms of the purchase agreements and the Servicing
Agreement.
(e) This
Agreement may be executed simultaneously in any number of
counterparts. Each counterpart shall be deemed to be an original and
all such counterparts shall constitute one and the same instrument.
(f) In
the
event that any provision of this Agreement conflicts with any provision of
the
purchase agreements or the Servicing Agreement with respect to the Mortgage
Loans, the terms of this Agreement shall control.
(g) Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the purchase
agreements or the Servicing Agreement, as applicable.
8. 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]
14
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
GS
MORTGAGE SECURITIES CORP.
By:
/s/ ▇▇▇▇▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Vice President
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇ REAL ESTATE FUNDING
CORP.,
its General Partner
By: /s/
▇▇▇▇
▇▇▇▇▇
Name:
▇▇▇▇ ▇▇▇▇▇
Title:
Vice President
AVELO
MORTGAGE, L.L.C., as Servicer
By: /s/
▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Name:
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
Avelo
Step 1 AAR
EXHIBIT
A
Mortgage
Loan Schedule
[On
File
with the Securities Administrator as provided by the Depositor]
A-1