ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT between GS MORTGAGE SECURITIES CORP., as Assignor and DEUTSCHE BANK NATIONAL TRUST COMPANY, as Assignee and as acknowledged by WELLS FARGO BANK, N.A., as Master Servicer Dated as of August 1, 2006
between
GS
MORTGAGE SECURITIES CORP.,
as
Assignor
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
as
Assignee
and
as acknowledged by
XXXXX
FARGO BANK, N.A.,
as
Master Servicer
Dated
as of
August
1, 2006
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made as of this 1st
day of
August 2006 (this “Assignment
Agreement”),
is
between Deutsche Bank National Trust Company, not in its individual capacity,
but solely as trustee on behalf of GSR Mortgage Loan Trust 2006-OA1 (the
“Assignee”),
and
GS Mortgage Securities Corp., a Delaware corporation (the “Assignor”
or
the
“Depositor”),
and is
acknowledged by Xxxxx Fargo Bank, N.A., as master servicer (the “Master
Servicer”).
WHEREAS,
Xxxxxxx Xxxxx Mortgage Company (“GSMC”)
acquired certain mortgage loans identified on Schedule
I
hereto
(the “Mortgage
Loans”)
from
various originators on a servicing released basis through its residential
mortgage loan conduit program pursuant to (i) the Sellers Guide dated August
30,
2004 (the “Sellers
Guide”),
(ii)
various Master Loan Purchase Agreements (each, a “MLPA”)
and
(iii) various Purchase Price and Terms Letters (each, a “PPTL,”
and
collectively, together with the Sellers Guide and the MLPAs, the “Conduit
Agreements”),
each
between GSMC and the related seller;
WHEREAS,
the Mortgage Loans are currently being subserviced by Avelo Mortgage, L.L.C.
(the “Subservicer”)
pursuant to a Flow Servicing Agreement dated as of January 1, 2006 (the
“Servicing
Agreement,”
and
together with the Conduit Agreements, the “Agreements”),
between GSMC and the Subservicer;
WHEREAS,
GSMC, the Assignor and the Subservicer have entered into the Assignment,
Assumption and Recognition Agreement dated as of August 1, 2006 (the
“AAR”),
and
GSMC and the Assignor have entered into a Representations and Warranties
Agreement dated as of August 24, 2006 (together with the AAR, the “GSMC
Assignment Agreement”),
pursuant to which GSMC has sold to the Assignor the Mortgage Loans, assigned
its
rights (absent the servicing rights related thereto) under the Mortgage Loans
and the Agreements to the Assignor and made certain representations and
warranties to the Assignor; and
WHEREAS,
pursuant to a Master Servicing and Trust Agreement dated as of August 1, 2006
(the “Trust
Agreement”),
among
the Assignor, as depositor, the Assignee, Deutsche Bank National Trust Company,
as custodian (the “Custodian”), and Xxxxx Fargo Bank, N.A., as securities
administrator and master servicer (in its master servicing capacity, the “Master
Servicer”), the Assignor will transfer the Mortgage Loans to the Assignee,
together with the Assignor’s rights under the Conduit Agreements, to the extent
relating to the Mortgage Loans (other than the servicing rights and 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 and the GSMC
Assignment Agreement (including without limitation the rights and obligations
of
GSMC under the Agreements to the extent assigned to the Assignor under the
GSMC
Assignment Agreement) from and after the date hereof, and the Assignee hereby
assumes all of the Assignor's obligations under the Agreements, to the extent
relating to the Mortgage Loans that arise only on and after August 24, 2006;
provided, however, it is understood and agreed upon by the parties hereto,
that
the Assignee shall not be liable for (i) any breach of any obligation or
representation of the Assignor pursuant to the GSMC Assignment Agreement or
(ii)
any breach of any obligation, covenant, representation or warranty of the
Assignor, or be responsible for any indemnification amounts owed by the
Assignor, pursuant to the Agreements arising prior to August 24, 2006. The
Assignor shall remain liable for all such liability arising prior to August
24,
2006 and for its own actions and omissions apart from those assumed by the
Assignee.
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(b) The
Assignor represents and warrants to the Assignee that the Assignor has not
taken
any action that would serve to impair or encumber the Assignor’s ownership
interest in the Mortgage Loans since the date of the related MLPA.
(c) The
Assignor shall have the right to amend, modify or terminate the Agreements
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) Notwithstanding
anything to the contrary in the Servicing Agreement, in the event the Servicer
is obligated to make an advance pursuant to the Servicing Agreement, the
aggregate payment due shall be the minimum monthly payment due under the
mortgage note, net of servicing fees.
2. Accuracy
of Agreements.
The
Assignor represents and warrants to the Assignee that (i) attached hereto as
Exhibit
1
are
true, accurate and complete copies of the Agreements, (ii) the Agreements are
in
full force and effect as of the date hereof, (iii) other than as provided
herein, the Agreements have not been amended or modified in any respect and
(iv)
no notice of termination has been given to the Subservicer under the Servicing
Agreement.
3. [Reserved]
4. Representations
and Warranties of the Assignee.
The
Assignee hereby represents and warrants to the Assignor as follows:
(a) Decision
to Purchase.
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 Assignor or the Servicer
other than those contained in the Agreements 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 Agreements.
(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).
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5. Representations
and Warranties of the Assignor.
The
Assignor hereby represents and warrants to the Assignee as of the date hereof,
unless otherwise stated below, as follows:
(a) Organization.
The
Assignor has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Delaware with full power and
authority (corporate and other) to enter into and perform its obligations under
the Agreements 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, arbitrator
or governmental body (i) with respect to any of the transactions
contemplated by this Assignment Agreement or (ii) 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.
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(f) Prior
Assignments; Pledges.
As of
August 24, 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) Releases.
As of
August 24, 2006, 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.
As of
August 24, 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.
(i) HOEPA.
As of
August 24, 2006, no Mortgage Loan is classified as a “high cost” mortgage loan
under Section 32 of the Home Ownership and Equity Protection Act of 1994, as
amended, and no Mortgage Loan is considered a “high cost” mortgage loan under
any applicable federal, state or local laws.
No
High Cost or Covered Loans.
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.
(j) Bring
Down.
With
respect to the Sellers Guide, nothing has occurred or failed to occur from
and
after the closing date set forth in the related MLPA to August 24, 2006, that
would cause any of the representations and warranties relating to the Mortgage
Loans set forth in Section II.B.2. of the Sellers Guide, as such may be amended
by the related MLPA, 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 5 shall survive delivery of the respective Mortgage Loan Documents
to the Custodian 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 6 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 5.
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It
is
understood and agreed that the Assignor has made no representations or
warranties to the Assignee other than those contained in this Section 5,
and no other affiliate of the Assignor has made any representations or
warranties of any kind to the Assignee.
6. 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 Purchase Price (as defined in the
Trust Agreement). Notwithstanding the foregoing, however, if such breach is
a
Qualification Defect, such cure or repurchase must take place within
seventy-five (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 Agreements,
but only insofar as the Agreements relate 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.
7. Continuing
Effect.
Except
as contemplated hereby, the Agreements shall remain in full force and effect
in
accordance with their terms.
8. 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.
9. Notices.
Any
notices or other communications permitted or required hereunder or under the
Agreements 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:
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(a) in
the
case of the Subservicer,
Avelo
Mortgage, L.L.C.
000
X.
Xxx Xxxxxxx Xxxx., Xxx. 000
Xxxxxx,
XX 00000
or
such
address as may hereafter be furnished by the Subservicer;
(b) in
the
case of the Assignee,
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000
Attention: GSR
2006-OA1
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
or
such
other address as may hereafter be furnished by the Assignee; and
(c) in
the
case of the Assignor,
GS
Mortgage Securities Corp.,
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
or
such
other address as may hereafter be furnished by the Assignor.
(d) in
the
case of the Master Servicer,
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx
00
Xxxxxxxx,
XX 00000
Attention:
Corporate
Trust Group
Facsimile:
(000) 000-0000
or
such
other address as may hereafter be furnished by the Master
Servicer;
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AAR
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10. 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.
11. Definitions.
Any
capitalized term used but not defined in this Assignment Agreement has the
meaning assigned thereto in the Agreements.
12. Trustee
Capacity.
It is
expressly understood and agreed by the parties hereto that (i) this Agreement
is
executed and delivered by Deutsche Bank National Trust Company (“Deutsche
Bank”),
not
individually or personally but solely as Assignee on behalf of GSR Mortgage
Loan
Trust 2006-OA1, in the exercise of the powers and authority conferred and vested
in it, (ii) each of the representations, undertakings and agreements by the
Assignee is made and intended for the purpose of binding only the GSR Mortgage
Loan Trust 2006-OA1, (iii) nothing herein contained shall be construed as
creating any liability on the part of Deutsche Bank, individually or personally,
to perform any covenant (either express or implied) contained herein, and all
such liability, if any, is hereby expressly waived by the parties hereto, and
such waiver shall bind any third party making a claim by or through one of
the
parties hereto, and (iv) under no circumstances shall Deutsche Bank be
personally liable for the payment of any indebtedness or expenses of the GSR
Mortgage Loan Trust 2006-OA1, or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
GSR
Mortgage Loan Trust 2006-OA1 under this Agreement, the Trust Agreement or any
related document.
13. Third
Party Beneficiary.
The
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 Agreement
the
day and year first above written.
ASSIGNOR:
GS
MORTGAGE SECURITIES CORP.
By:
Name:
Title:
ASSIGNEE:
DEUTSCHE
BANK NATIONAL TRUST COMPANY, not in its individual capacity but solely as
trustee on behalf of GSR Mortgage Loan Trust 2006-OA1
By:
Name:
Title:
Acknowledged
by:
MASTER
SERVICER:
XXXXX
FARGO BANK, N.A.
By:
________________________________
Name:
Title:
SCHEDULE 1
Mortgage
Loan Schedule
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I-1
EXHIBIT 1
Servicing
Agreement, Sellers Guide and applicable XXXXx
000000
XXX
0000-XX0
Xxxxx
XXX
(Depositor to Trust)
