EXECUTION COPY
EXHIBIT 99.9
================================================================================
GSAA HOME EQUITY TRUST 2007-3
ASSET-BACKED CERTIFICATES
SERIES 2007-3
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
and
FIRST NATIONAL BANK OF NEVADA,
as Responsible Party
Dated as of
February 23, 2007
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment
Agreement") made this 23rd day of February, 2007, among First National Bank of
Nevada (the "Responsible Party"), GS Mortgage Securities Corp., as assignee
(the "Assignee") and Xxxxxxx Sachs Mortgage Company, as assignor (the
"Assignor").
WHEREAS, the Assignor and the Responsible Party have entered into the
Second Amended and Restated Master Mortgage Loan Purchase and Interim
Servicing Agreement, dated as of May 1, 2006 (the "Sale Agreement") pursuant
to which the Responsible Party sold certain mortgage loans on a
servicing-released basis listed on the mortgage loan schedule attached as an
exhibit to the Master Servicing and Trust Agreement (as defined below);
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 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
February 1, 2007 (the "Trust Agreement"), among GS Mortgage Securities Corp.,
as depositor, U.S. Bank National Association, 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 and Xxxxx Fargo Bank, National Association, as master servicer (in
such capacity, the "Master Servicer") and as securities administrator, the
Assignee will transfer the Mortgage Loans to the Trustee, together with the
Assignee's rights under the Sale Agreement, to the extent relating to the
Mortgage Loans (other than the rights of the Assignor (and if applicable its
affiliates, officers, directors and agents) to indemnification thereunder).
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption. (a) The Assignor hereby assigns to the
Assignee, as of the date hereof, all of its right, title and interest in and
to the Mortgage Loans and the Sale 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),
and the Assignee hereby assumes all of the Assignor's obligations under the
Sale Agreement, to the extent relating to the Mortgage Loans, from and after
the date hereof, and the Responsible Party hereby acknowledges such assignment
and assumption and hereby agrees to the release of the Assignor from any
obligations under 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 date of the Sale
Agreement.
(c) The Responsible Party and the Assignor shall have the right to
amend, modify or terminate the Sale 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. Accuracy of Sale Agreement. The Responsible Party 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 Agreement, (ii) the Sale
Agreement is in full force and effect as of the date hereof, (iii) except as
provided in this Assignment Agreement, the Sale Agreement has not been amended
or modified in any respect and (iv) to the best of the Assignor's knowledge,
no notice of termination has been given to the Responsible Party under the
Sale Agreement. The Responsible Party, in its capacity as seller under the
Sale Agreement, further represents and warrants that the representations and
warranties contained in Sections 7.01 and 7.02 of the Sale Agreement are true
and correct as of the Closing Date (as such term is defined in the Sale
Agreement).
3. Modification of the Sale Agreement. Only in so far as it relates to
the Mortgage Loans, the Responsible Party and the Assignor hereby amend the
Sale Agreement as follows:
(a) a new section, Section 33, will be added immediately following
Section 32 which shall read as follows:
"SECTION 33. Third Party Beneficiary.
Xxxxx Fargo Bank, National Association as master servicer and securities
administrator under the Master Servicing and Trust Agreement, dated as of
February 1, 2007, among GS Mortgage Securities Corp., U.S. Bank National
Association, Deutsche Bank National Trust Company, The Bank of New York Trust
Company, National Association and Xxxxx 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."
4. Recognition of Assignee. From and after the date hereof, the
Responsible Party 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. It is the intention of the Assignor, Assignee and
Responsible Party that the Sale Agreement shall be binding upon and inure to
the benefit of the Responsible Party and the Assignee and their successors and
assigns.
5. Representations and Warranties of the Assignee. The Assignee hereby
represents and warrants to the Assignor as follows:
(a) Decision to Purchase. The Assignee represents and warrants that it
is a sophisticated investor able to evaluate the risks and merits of the
transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor or the
Responsible Party other than those contained in the Sale Agreement or this
Assignment Agreement.
2
(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 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).
6. Representations and Warranties of the Assignor. The Assignor hereby
represents and warrants to the Assignee as follows:
(a) Organization. The Assignor has been duly organized and is validly
existing as a limited partnership in good standing under the laws of the State
of New York with full power and authority (corporate and other) to enter into
and perform its obligations under 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,
3
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.
7. Additional Representations and Warranties of the Assignor With
Respect to the Mortgage Loans. The Assignor hereby represents and warrants to
the Assignee as follows:
(a) Prior Assignments; Pledges. Except for the sale to the Assignee, the
Assignor has not assigned or pledged any Mortgage Note or the related Mortgage
or any interest or participation therein.
(b) Releases. The Assignor has not satisfied, canceled or subordinated
in whole or in part, or rescinded any Mortgage, and the Assignor has not
released the related Mortgaged Property from the lien of any Mortgage, in
whole or in part, nor has the Assignor executed an instrument that would
effect any such release, cancellation, subordination, or rescission. The
Assignor has not released any Mortgagor, in whole or in part, except in
connection with an assumption agreement or other agreement approved by the
related federal insurer, to the extent such approval was required.
(c) Compliance with Applicable Laws. With respect to each Mortgage Loan,
any and all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures,
consumer credit protection, equal credit opportunity, predatory and abusive
lending or disclosure laws applicable to such Mortgage Loan, including without
limitation, any provisions relating to prepayment charges, have been complied
with.
(d) High Cost. No Mortgage Loan is categorized as "High Cost" pursuant
to the then-current Standard & Poor's Glossary for File Format for LEVELS(R)
Version 5.7, Appendix E, as revised from time to time and in effect as of the
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
4
to such Mortgage Loan set forth in Section 7.02 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 6 and 7 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 8 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 6 and 7.
It is further understood and agreed that, except as specifically set forth in
Sections 6 and 7, the Assignor shall be deemed not to have made the
representations and warranties in Section 7(g) with respect to, and to the
extent of, representations and warranties made, as to the matters covered in
Section 7(g), by the Responsible Party 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 6 and 7, and no other affiliate of the
Assignor has made any representations or warranties of any kind to the
Assignee.
8. Repurchase of Mortgage Loans. Upon discovery or notice of any breach
by the Assignor of any representation, warranty or covenant under this
Assignment Agreement that materially and adversely affects the value of any
Mortgage Loan or the interest of the Assignee therein (it being understood
that any such defect or breach shall be deemed to have materially and
adversely affected the value of the related Mortgage Loan or the interest of
the Assignee therein if the Assignee incurs a loss as a result of such defect
or breach), the Assignee promptly shall request that the Assignor cure such
breach and, if the Assignor does not cure such breach in all material respects
within sixty (60) days from the date on which it is notified of the breach,
the Assignee may enforce the Assignor's obligation hereunder to purchase such
Mortgage Loan from the Assignee at the 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).
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, provided that any such
5
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 Responsible Party 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 Responsible
Party to cure such breach or purchase such mortgage loan from the Trust. If
the Responsible Party does not within sixty (60) days after notification of
the breach, take steps to cure such breach (which may include certifying to
progress made and requesting an extension of the time to cure such breach, as
permitted under the 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 Responsible Party 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 Responsible Party 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 the Sale Agreement,
but only insofar as such Sale 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 8, 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
6
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 7.02 of the
Sale 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 on 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.
9. Continuing Effect. Except as contemplated hereby, the Sale Agreement
shall remain in full force and effect in accordance with its terms.
10. 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.
11. Notices. Any notices or other communications permitted or required
hereunder or under 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 Responsible Party,
First National Bank of Nevada
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attn: Secondary Marketing
With a copy to:
First National Bank of Nevada
0000 Xxxx Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
7
Attn: General Counsel
or such other address as may hereafter be furnished by the Responsible Party;
(b) in the case of the Assignee,
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignee; and
(c) in the case of the Assignor,
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignor.
12. 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.
13. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Sale Agreement or
Trust Agreement, as applicable.
14. Third Party Beneficiary. The parties agree that the Trustee is
intended to be, and shall have the rights of, a third party beneficiary of
this Assignment Agreement.
8
[SIGNATURE PAGE FOLLOWS]
9
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement the day and year first above written.
XXXXXXX SACHS MORTGAGE
COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding
Corp., its General Partner
By: /s/ S. Xxxx X. Xxxxx
----------------------------------
Name:
Title: VP
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
----------------------------------
Name:
Title: VP
FIRST NATIONAL BANK OF NEVADA
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name:
Title: SVP
FNBN Step 1 AAR
EXHIBIT 1
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
1-1
EXHIBIT 2
Sale Agreement
[On File with the Depositor]
2-1