ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
EXECUTION
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment”), dated of
August 1, 2006, is entered into among GS Mortgage Securities Corp. (the
“Assignee”), Xxxxxxx Xxxxx Mortgage Company (the “Assignor”), and PHH Mortgage
Corporation (formerly known as Cendant Mortgage Corporation), as the servicer
(the “Servicer”) and the seller (the “Seller”).
RECITALS
WHEREAS
the Assignor, the Seller and the Servicer have entered into a certain Amended
and Restated Mortgage Loan Flow Purchase, Sale & Servicing Agreement, dated
as of May 1, 2006, as amended by Amendment No. 1, dated July 1, 2006 (the
“Agreement”) and the related Purchase, Price and Terms Letter dated as of July
26, 2006 (the “PPTL”), pursuant to which the Assignor has acquired certain
Mortgage Loans pursuant to the terms of the Agreement and the Servicer has
agreed to service such Mortgage Loans;
WHEREAS
the Assignee has agreed, on the terms and conditions contained herein, to
purchase from the Assignor certain of the Mortgage Loans (the “Specified
Mortgage Loans”) which are subject to the provisions of the Agreement and the
PPTL and are listed on the mortgage loan schedule attached as Exhibit
I
hereto
(the “Specified Mortgage Loan Schedule”).
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) On
and of
the date hereof, the Assignor hereby sells, assigns and transfers to the
Assignee all of its right, title and interest in the Specified Mortgage Loans
and all rights related thereto as provided under the Agreement to the extent
relating to the Specified Mortgage Loans (other than the rights of the Assignor
to indemnification under the Agreement), the Assignee hereby accepts such
assignment from the Assignor and hereby agrees to the release of the Assignor
from any obligations under the Agreement, to the extent of the Specified
Mortgage Loans, from and after the date hereof, and each of the Seller and
the
Servicer hereby acknowledges such assignment, assumption and
release.
(b) On
and as
of the date hereof, the Assignor represents and warrants to the Assignee that
the Assignor has not taken any action that would serve to impair or encumber
the
Assignee’s ownership interests in the Specified Mortgage Loans since the date of
the Assignor’s acquisition of the Specified Mortgage Loans.
(c)
The
Assignor, the Seller and the Servicer shall have the right to amend, modify
or
terminate the Agreement or the PPTL without joinder of the Assignee with respect
to mortgage loans not conveyed to 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 under the
heading “Early Payment Default” in the PPTL, but only to the extent such
provision relates to the Specified Mortgage Loans. The foregoing shall
constitute the Assignor’s consent to the assignment of the PPTL (to the extent
required by the terms of each PPTL).
(e) Notwithstanding
any provision of the PPTL to the contrary, in the event any Specified Mortgage
Loan is repurchased by the Seller pursuant to the Early Payment Default
provisions of the PPTL, 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 PHH is not the Servicer), and (d) any reasonable costs
and
expenses incurred by the Trustee or (so long as PHH is not the Servicer) any
Servicer, including without limitation costs and expenses incurred in the
enforcement of the Company’s repurchase obligation under the PPTL. 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 PPTL 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 Specified Mortgage Loans, under the “Early Payment Default”
provisions of the PPTL including, without limitation, the enforcement of the
repurchase requirements set forth therein, and shall be entitled to enforce
all
the obligations of the Company thereunder insofar as they relate to the
Specified Mortgage Loans.
2. Accuracy
of Agreement
Each
of
the Seller, the Servicer and the Assignor represent and warrant to Assignee
that
(i) attached hereto as Exhibit II is a true, accurate and complete copy of
the
Agreement, (ii) attached hereto as Exhibit III is a true, accurate and complete
copy of Section I of the PPTL, (iii) the Agreement and the PPTL are in full
force and effect as of the date hereof, (iv) the Agreement and the PPTL have
not
been amended or modified in any respect and (v) no notice of termination has
been given to the Servicer thereunder.
3. Recognition
of Purchaser
From
and
after the date hereof, each of the Assignee, the Seller and the Servicer shall
note the transfer of the Specified Mortgage Loans to the Assignee in their
respective books and records and shall recognize the Assignee as the owner
of
the Specified Mortgage Loans, and Servicer shall service the Specified Mortgage
Loans for the benefit of the Assignee pursuant to the Agreement, the terms
of
which are incorporated herein by reference. It is the intention of the Seller,
the Servicer, the Assignee and the Assignor that the Assignment shall be binding
upon and inure to the benefit of the Assignee and the Assignor and their
successors and assigns.
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4. Representations
and Warranties of Assignee.
The
Assignee hereby represents and warrants to the Seller, the Servicer and the
Assignor as follows:
(a) The
Assignee 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 Seller or the Assignor
other than those contained in the Agreement or this Assignment.
(b) The
Assignee is duly and legally authorized to enter into this Assignment and to
perform its obligations hereunder and under the Agreement and the
PPTL.
(c) This
Assignment 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 against
it 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).
5. Representations
and Warranties of Assignor.
The
Assignor hereby represents and warrants to the Assignee, Seller and Servicer
as
of the date hereof, unless otherwise stated, as follows:
(a)
The
Assignor is an entity duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization with full power and authority
(corporate and other) to enter into and perform its obligations under this
Assignment.
(b)
This
Assignment has been duly authorized, executed and delivered by the Assignor
and
(assuming due authorization, execution and delivery thereof by each of the
other
parties hereto) constitutes its legal, valid and binding obligation, enforceable
against it 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).
(c) The
execution, delivery and performance by the Assignor of this Assignment 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.
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(d)
The
execution and delivery of this Assignment have been duly authorized by all
necessary corporate action on the part of the Assignor; neither the execution
and delivery of this Assignment, nor the consummation of the transactions
therein contemplated, nor compliance by the Assignor with the provisions
thereof, 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 Assignor is a party or by which it is bound.
(e)
There
is
no action, suit, proceeding or investigation pending or, to the best of the
Assignor’s knowledge, threatened, against the Assignor, which, either in any one
instance or in the aggregate, if determined adversely to the Assignor would
adversely affect its ability to perform its obligations under this
Assignment.
(f)
As
of
August 25, 2006, 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) No
Transferred 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.
(h) As
of
August 25, 2006, 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.
6. Representations
and Warranties of Seller and Servicer.
Each of
the Seller and the Servicer hereby represents and warrants to the Assignee
and
the Assignor as follows:
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(a) Each
of
the Seller and the Servicer is duly and legally authorized to enter into this
Assignment and to perform its respective obligations hereunder and under the
Agreement and the PPTL.
(b) This
Assignment has been duly authorized, executed and delivered by each of the
Seller and the Servicer and (assuming due authorization, execution and delivery
thereof by each of the other parties hereto) constitutes its legal, valid and
binding obligation, enforceable against each such party 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).
(c) The
representations and warranties of the Seller and the Servicer set forth in
Sections 3.01 and 3.02 of each Agreement are true and correct as of the date
hereof.
7. Continuing
Effect
Except
as
contemplated hereby, the Agreement shall remain in full force and effect in
accordance with its terms.
8. Governing
Law
This
Assignment 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, 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.
9. Notices
Any
notices or other communications permitted or required to be made under the
Agreement shall be made in accordance with the terms of the Agreement and shall
be sent (i) to the Assignee as follows: GS
Mortgage Securities Corp., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxxxx Xxxxxxxx, Facsimile No.: (000) 000-0000 or
to
such other address as may hereafter be furnished by the Assignee to the parties
in accordance with the provisions of the Agreement and (ii) to the Servicer
and
Seller as follows: PHH Mortgage Corporation, 0000 Xxxxxxxxxx Xxxx, Xx. Xxxxxx,
XX 00000, Attn: Xxxx Xxxxxx, Facsimile
No.:
(000) 000-0000.
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10. Counterparts
This
Assignment 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.
11. Definitions
Any
capitalized term used but not defined in this Assignment has the same meaning
as
in the Agreement.
12. Third-Party
Beneficiary
Xxxxx
Fargo as master servicer shall be considered a Third-Party Beneficiary to this
Assignment entitled to all rights and benefits hereof as if it were a direct
party to this Assignment.
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IN
WITNESS WHEREOF, the parties hereto have executed this Assignment the day and
year first above written.
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ASSIGNOR:
XXXXXXX XXXXX MORTGAGE COMPANY
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ASSIGNEE:
GS MORTGAGE SECURITIES CORP.
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SELLER
and SERVICER:
PHH MORTGAGE CORPORATION
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Exhibit
I
Specified
Mortgage Loan Schedule
Exhibit
II
Agreement
Exhibit
III
Section
I
of PPTL
| I. Early Payment Default: |
In
the event that the first scheduled payment to be made by the mortgagor
on
the first due date after the Closing Date, with respect to any Mortgage
Loan is not paid within thirty (30) days following such due date,
the
Seller shall repurchase such Mortgage Loan within five (5) business
days
of the Purchaser’s request at a price equal to the Repurchase Price for
such Mortgage Loan. The provisions set forth in this paragraph shall
survive the Closing Date and shall not merge with the closing documents,
but instead shall be independently enforceable by the
Purchaser.
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