ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GOLDMAN SACHS MORTGAGE COMPANY, as Assignor GS MORTGAGE SECURITIES CORP., as Assignee and GREENPOINT MORTGAGE FUNDING, INC. as Servicer Dated as of December 1, 2006
EXECUTION
among
XXXXXXX
XXXXX MORTGAGE COMPANY,
as
Assignor
GS
MORTGAGE SECURITIES CORP.,
as
Assignee
and
GREENPOINT
MORTGAGE FUNDING, INC.
as
Servicer
Dated
as of
December
1, 2006
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment
Agreement”)
made
this 1st
day of
December, 2006, among GreenPoint Mortgage Funding, Inc., (the “Servicer”),
GS
Mortgage Securities Corp., as assignee (the “Assignee”)
and
Xxxxxxx Sachs Mortgage Company, as assignor (the “Assignor”).
WHEREAS,
the Assignor and the Servicer have entered into (i) the Flow Interim
Servicing Agreement, dated as of October 1, 2006 (the “Servicing
Agreement”)
and
(ii) the Flow Mortgage Loan Purchase and Warranties Agreement, dated as of
October 1, 2006 (the “Flow Sale Agreement”) and the related Trade Confirmations
dated as of September 14, 2006, October 5, 2006 and November 3, 2006 (the “Trade
Confirmations” and together with the Flow Sale Agreement, the “Sale
Agreement”)
pursuant to which the Servicer sold certain mortgage loans listed on the
mortgage loan schedule attached as an exhibit to the 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 Servicing Agreement and 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 December 1,
2006
(the “Trust
Agreement”),
among
GS Mortgage Securities Corp., as depositor, Xxxxx Fargo Bank, N.A., as
securities administrator (in such capacity, the “Securities Administrator”) and
as master servicer (in such capacity, the “Master Servicer”) and Deutsche Bank
National Trust Company, as trustee (in such capacity, the “Trustee”) and as
custodian (in such capacity, the“Custodian”),
the
Assignee will transfer the Mortgage Loans to the Trustee, together with the
Assignee’s rights under the Servicing Agreement and Sale Agreement, to the
extent relating to the Mortgage Loans (other than the rights of the Assignor
to
indemnification thereunder).
NOW
THEREFORE, in consideration of the mutual promises contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Assignment
and Assumption.
a) The
Assignor hereby assigns to the Assignee, as of the date hereof, all of its
right, title and interest in and to the Mortgage Loans, the Servicing Agreement
and the Sale Agreement, to the extent relating to the Mortgage Loans (other
than
the rights of the Assignor to indemnification thereunder), and the Assignee
hereby assumes all of the Assignor’s obligations under the Servicing Agreement
and Sale Agreement, to the extent relating to the Mortgage Loans, from and
after
December 29, 2006, and the Servicer hereby acknowledges such assignment and
assumption and hereby agrees to the release of the Assignor from any obligations
under the Servicing Agreement and Sale Agreement from and after December 29,
2006, to the extent relating to the Mortgage Loans.
(b) The
Assignor represents and warrants to the Assignee that the Assignor has not
taken
any action which would serve to impair or encumber the Assignor’s ownership
interest in the Mortgage Loans since the respective dates of the Servicing
Agreement and Sale Agreement.
(c) The
Servicer and the Assignor shall have the right to amend, modify or terminate
the
Servicing Agreement without the joinder of the Assignee with respect to mortgage
loans not conveyed to the Assignee hereunder; provided,
however,
that
such amendment, modification or termination shall not affect or be binding
on
the Assignee.
(d) The
Assignor hereby assigns to the Assignee, any rights of the Assignor with respect
to early payment defaults or first payment defaults in the Trade Confirmations,
but only to the extent such provision relates to the Mortgage Loans. The
foregoing shall constitute the Assignor’s consent to the assignment of the Trade
Confirmations (to the extent required by the terms of each Trade Confirmation).
(e) Notwithstanding
any provision of the Trade Confirmations to the contrary, in the event any
Mortgage Loan is repurchased by the Servicer pursuant to any early payment
default or first payment default provisions of the Trade Confirmations, the
“Repurchase Price” payable to the Assignee shall be an amount equal to the sum
of: (a) the outstanding principal balance of such Mortgage Loan as of the date
of such repurchase, (b) accrued interest on such outstanding principal balance
at the applicable Mortgage Interest Rate from the date interest was last paid
through the last day of the month in which such repurchase takes place, (c)
the
amount of any outstanding advances owed to the servicer (so long as GreenPoint
is not the servicer), and (d) any reasonable costs and expenses incurred by
any
servicer (so long as GreenPoint is not such servicer) or by the Trustee,
including without limitation costs and expenses incurred in the enforcement
of
the Servicer’s repurchase obligation under the Trade Confirmations. It is hereby
understood that the right to any excess over such amount set forth in the
definition of “Repurchase Price” set forth in any Trade Confirmation is not
being sold or assigned hereunder and is being retained by the Assignor.
(f) The
Trust
(including the Trustee 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 the Mortgage Loans, under any early payment default or first
payment default provisions of the Trade Confirmations including, without
limitation, the enforcement of the repurchase requirements set forth therein,
and shall be entitled to enforce all the obligations of the Servicer thereunder
insofar as they relate to the Mortgage Loans.
2. Modification
of the Servicing Agreement.
Only in
so far as it relates to the Mortgage Loans, the Servicer and the Assignor hereby
amend the Servicing Agreement as follows:
(a) a
new
defined term “Business Day” will be added to Article I after the term “Ancillary
Income” as follows:
-2-
“Business
Day:
Any day
other than (i) a Saturday or Sunday, or (ii) a day on which banking or
savings and loan institutions in the States of Maryland, Minnesota, New York
or
California are authorized or obligated by law or executive order to be
closed.”
(b) The
definition of “Remittance Date” in Article I of the shall be amended by deleting
the definition in its entirety and replacing it with the following:
“With
respect to each Mortgage Loan: the eighteenth (18th)
day of
any month, beginning with the eighteenth (18th)
day of
the month next following the month in which the related Cut-off Date occurs,
or
if such eighteenth (18th)
day is
not a Business Day, the immediately preceding Business Day.”
(c) Subsection
(ii) of Section 10.01(a) shall be deleted in its entirety and replaced with
the
following:
“failure
by the Interim
Servicer
duly to observe or perform in any material respect any of the covenants or
agreements on the part of the Interim Servicer set forth in this Agreement
(other than those listed in subsection (a) of this Section 10.01) which
continues unremedied for a period of 30 calendar days after the date on which
written notice of such failure, requiring the same to be remedied, shall have
been given to the Interim Servicer by the Purchaser or by the Custodian;
or”.
(d) The
words
“60 days” in Section 10.01(c) shall be deleted and replaced with the words
“sixty calendar days.”
(e) A
new
Section 11.10 shall be added to the agreement to read as follows:
“Third
Party Beneficiary.
The
Master Servicer shall be considered a third-party beneficiary of this Agreement,
entitled to all the rights and benefits hereof as if it were a direct party
to
this Agreement.”
3. Accuracy
of 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 Servicing Agreement, (ii) attached
hereto as Exhibit 3
is a
true, accurate and complete copy of the Sale Agreement, (iii) each of the
Servicing Agreement and Sale Agreement is in full force and effect as of the
date hereof, (iv) except as provided in Section 2 above, each of the
Servicing Agreement and Sale Agreement has not been amended or modified in
any
respect and (v) no notice of termination has been given to the Servicer
under the Servicing Agreement or Sale Agreement. The Servicer, in its capacity
as seller and/or servicer under the Servicing Agreement, further represents
and
warrants that the representations and warranties contained in Section 9.01
of
the Servicing Agreement are true and correct as of the Closing Date (as such
term is defined in the Servicing Agreement).
4. Recognition
of Assignee.
From
and after the date hereof, the Servicer shall note the transfer of the Mortgage
Loans to the Assignee in its books and records, shall recognize the Assignee
as
the owner of the Mortgage Loans and, notwithstanding anything herein to the
contrary, shall service all of the Mortgage Loans for the benefit of the
Assignee pursuant to the Servicing Agreement the terms of which are incorporated
herein by reference. It is the intention of the Assignor, Servicer and Assignee
that the Servicing Agreement shall be binding upon and inure to the benefit
of
the Servicer and the Assignee and their successors and assigns.
-3-
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, Sale Agreement or this Assignment Agreement.
(b) Authority.
The
Assignee hereto represents and warrants that it is duly and legally authorized
to enter into this Assignment Agreement and to perform its obligations hereunder
and under the Servicing Agreement and 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 Servicing Agreement , the Sale Agreement and this
Assignment Agreement.
(b) Enforceability.
This
Assignment Agreement has been duly executed and delivered by the Assignor,
and,
assuming due authorization, execution and delivery by each of the other parties
hereto, constitutes a legal, valid, and binding agreement of the Assignor,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, or other similar laws affecting
creditors’ rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law.
(c) No
Consent.
The
execution, delivery and performance by the Assignor of this Assignment Agreement
and the consummation of the transactions contemplated hereby do not require
the
consent or approval of, the giving of notice to, the registration with, or
the
taking of any other action in respect of, any state, federal or other
governmental authority or agency, except such as has been obtained, given,
effected or taken prior to the date hereof.
-4-
(d) Authorization;
No Breach.
The
execution and delivery of this Assignment Agreement have been duly authorized
by
all necessary corporate action on the part of the Assignor; neither the
execution and delivery by the Assignor of this Assignment Agreement, nor the
consummation by the Assignor of the transactions herein contemplated, nor
compliance by the Assignor with the provisions hereof, will conflict with or
result in a breach of, or constitute a default under, any of the provisions
of
the governing documents of the Assignor or any law, governmental rule or
regulation or any material judgment, decree or order binding on the Assignor
or
any of its properties, or any of the provisions of any material indenture,
mortgage, deed of trust, contract or other instrument to which the Assignor
is a
party or by which it is bound.
(e) Actions;
Proceedings.
There
are no actions, suits or proceedings pending or, to the knowledge of the
Assignor, threatened, before or by any court, administrative agency, arbitrator
or governmental body (A) with respect to any of the transactions
contemplated by this Assignment Agreement or (B) with respect to any other
matter that in the judgment of the Assignor will be determined adversely to
the
Assignor and will, if determined adversely to the Assignor, materially adversely
affect its ability to perform its obligations under this Assignment
Agreement.
(f) Prior
Assignments; Pledges.
Except
for the sale to the Assignee, the Assignor has not assigned or pledged any
Mortgage Note or the related Mortgage or any interest or participation
therein.
(g) Releases.
The
Assignor has not satisfied, canceled or subordinated in whole or in part, or
rescinded any Mortgage, and the Assignor has not released the related Mortgaged
Property from the lien of any Mortgage, in whole or in part, nor has the
Assignor executed an instrument that would effect any such release,
cancellation, subordination, or rescission. The Assignor has not released any
Mortgagor, in whole or in part, except in connection with an assumption
agreement or other agreement approved by the related federal insurer, to the
extent such approval was required.
(h) Compliance
with Applicable Laws.
Any and
all requirements of any federal, state or local law including, without
limitation, usury, truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity, predatory and abusive lending
or
disclosure laws applicable to the Mortgage Loans have been complied with. All
inspections, licenses and certificates required to be made or issued with
respect to all occupied portions of the Mortgaged Properties and, with respect
to the use and occupancy of the same, including but not limited to certificates
of occupancy and fire underwriting certificates, have been made or obtained
from
the appropriate authorities.
(i) No
Mortgage Loan is a “High Cost Loan” or “Covered Loan,” as applicable, as such
terms are defined in the then current Standard & Poor’s LEVELSâ
Glossary. In addition, no Transferred Mortgage Loan is a “high-cost,” “high-cost
home,” “covered,” “high-risk home,” or “predatory” loan under any applicable
federal, state or local predatory or abusive lending law (or a similarly
classified loan using different terminology under a law imposing heightened
regulatory scrutiny or additional legal liability for residential mortgage
loans
having high interest rates, points and/or fees), and no Mortgage Loan originated
on or after October 1, 2002 through March 6, 2003 is governed by the Georgia
Fair Lending Act.
-5-
(j)
Bring Down.
With
respect to the Sale Agreement, nothing has occurred or failed to occur from
and
after the closing date set forth in such Sale Agreement to December 29, 2006
that would cause any of the representations and warranties relating to the
applicable Mortgage Loans set forth in Section 9.02 of the Sale Agreement to
be
incorrect in any material respects as of the date hereof as if made on the
date
hereof.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 6 shall survive delivery of the respective mortgage loan documents
to
the custodians 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 7 to repurchase a Mortgage Loan constitute the sole
remedies available to the Assignee and its assigns on their behalf respecting
a
breach of the representations and warranties contained in this Section 6. It
is
further understood and agreed that, except as specifically set forth in this
Section 6, the Assignor shall be deemed not to have made the representations
and
warranties in this Section 6(j) with respect to, and to the extent of,
representations and warranties made, as to the matters covered in this Section
6(j), by the Servicer in the Sale Agreement (or any officer’s certificate
delivered pursuant thereto).
It
is
understood and agreed that the Assignor has made no representations or
warranties to the Assignee other than those contained in this Section 6, and
no
other affiliate of the Assignor has made any representations or warranties
of
any kind to the Assignee.
7. 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 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. Notwithstanding the foregoing, however, if such breach is a
Qualification Defect as defined in the Sale Agreement, such cure or repurchase
must take place within 75 days of discovery of such Qualification
Defect.
In
the
event of a repurchase 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 Servicing
Agreement and Sale Agreement, but only insofar as such Servicing Agreement
and
Sale Agreement relates to such Mortgage Loan.
-6-
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.
8. Continuing
Effect.
Except
as contemplated hereby, the Servicing Agreement and Sale Agreement shall remain
in full force and effect in accordance with their respective terms.
9. Governing
Law.
THIS
ASSIGNMENT AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF
NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS
AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
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.
10. Notices.
Any
notices or other communications permitted or required hereunder or under the
Servicing Agreement or 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
facsimile and confirmed by a similar mailed writing, to:
(a) in
the
case of the Servicer,
GreenPoint
Mortgage Funding, Inc.
000
Xxxx
Xxxxxx Xxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Attention:
Xxxxx Xxxxx
Facsimile:
(000) 000-0000
or
such
other address as may hereafter be furnished by the Servicer;
-7-
(b) in
the
case of the Assignee,
GS
Mortgage Securities Corp.
000
Xxxxxx Xxxxxx Xxxxx
Xxxxx
000
Xxxxx
Xx.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx
Xxxxx
Telephone: (000)
000-0000
Facsimile: (000)
000-0000
With
a
copy to:
GS
Mortgage Securities Corp.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxxxx House
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: Xxxxxx
Xxxxxxxxx
Facsimile: (000)
000-0000
or
such
other address as may hereafter be furnished by the Assignor.
11. Counterparts.
This
Assignment Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same instrument.
12. Definitions.
Any
capitalized term used but not defined in this Assignment Agreement has the
meaning assigned thereto in the Servicing Agreement.
13. Confidentiality.
Notwithstanding anything to the contrary contained in the Servicing Agreement
or
this Assignment Agreement the Servicer hereby agrees that the Depositor and
its
designees may file copies of this Assignment Agreement and the Servicing
Agreement with the Securities and Exchange Commission in accordance with Item
1108(c) of Regulation AB.
-8-
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
the
day and year first above written.
ASSIGNOR:
XXXXXXX
SACHS MORTGAGE COMPANY
By: Xxxxxxx
Xxxxx Real Estate Funding Corp., its General Partner
By:
/s/
Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
Managing Director
ASSIGNEE:
GS
MORTGAGE SECURITIES CORP.
By:
/s/
X.
Xxxx
Name:
X.
Xxxx
Title:
Vice President
SERVICER:
GREENPOINT
MORTGAGE FUNDING, INC.
By:
/s/
Xxxxx Xxxxx
Name:
Xxxxx Xxxxx
Title:
Vice President
EXHIBIT
1
Mortgage
Loan Schedule
1-1
EXHIBIT
2
Servicing
Agreement
2-1
Sale
Agreement
3-1
