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 December 1, 2006
EXECUTION
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
December
1, 2006
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made as of this 1st
day of
December 2006 (this “Assignment
Agreement”),
is
between Deutsche Bank National Trust Company, not in its individual capacity,
but solely as trustee on behalf of GreenPoint Mortgage Funding Trust 2006-OH1
(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”) and Avelo Mortgage, L.L.C. (the
“Subservicer”)
are
parties to a Flow Servicing Agreement dated as of January 1, 2006 (the
“Servicing
Agreement”)
pursuant to which the Subservicer services certain mortgage loans;
WHEREAS,
GSMC, the Assignor and the Subservicer have entered into the Assignment,
Assumption and Recognition Agreement dated as of December 1, 2006 (the
“AAR”)
(the
“GSMC
Assignment Agreement”),
pursuant to which GSMC has assigned its rights under the Servicing Agreement,
insofar as such rights relate to the mortgage loans identified on Schedule
I
hereto
(the “Mortgage
Loans”),
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 December 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 Servicing Agreement, 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 GSMC Assignment Agreement
(including without limitation the rights and obligations of GSMC under the
Servicing Agreement
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 Servicing Agreement, to the extent relating to the
Mortgage Loans that arise only on and after December 29, 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 Servicing Agreement
arising prior to December 29, 2006. The Assignor shall remain liable for all
such liability arising prior to December 29, 2006 and for its own actions and
omissions apart from those assumed by the Assignee.
(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 Assignor acquired such Mortgage
Loans.
(c) 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) 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
is a
true, accurate and complete copy of the Servicing Agreement, (ii) the Servicing
Agreement is in full force and effect as of the date hereof, (iii) other than
as
provided herein, the Servicing Agreement has 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 Servicing 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.
(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).
2
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 Servicing 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, 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.
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.
3
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 Servicing
Agreement, but only insofar as the Servicing 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.
7. Continuing
Effect.
Except
as contemplated hereby, the Servicing Agreement 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
Servicing 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:
4
|
(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: GPMF
2006-OH1
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;
5
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 Servicing Agreement.
12. Trustee
Capacity.
It is
expressly understood and agreed by the parties hereto that (i) this Assignment
Agreement is executed and delivered by Deutsche Bank National Trust Company
(“Deutsche
Bank”),
not
individually or personally but solely as Assignee on behalf of GreenPoint
Mortgage Funding Trust 2006-OH1, 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 GreenPoint Mortgage Funding Trust 0000-XX0, (xxx) 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 GreenPoint Mortgage Funding Trust 2006-OH1, or be liable for
the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the GreenPoint Mortgage Funding Trust 2006-OH1 under this
Assignment 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.
6
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
the
day and year first above written.
ASSIGNOR:
GS
MORTGAGE SECURITIES CORP.
By:
/s/
X.
Xxxx
Name: X. Xxxx
Title: Vice President
Name: X. Xxxx
Title: Vice President
ASSIGNEE:
DEUTSCHE
BANK NATIONAL TRUST COMPANY,
not in its individual capacity but solely as
trustee on behalf of GreenPoint
Mortgage Funding Trust 2006-OH1
not in its individual capacity but solely as
trustee on behalf of GreenPoint
Mortgage Funding Trust 2006-OH1
By:
/s/
Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Signatory
Name: Xxxxxxx Xxxxxxxxx
Title: Authorized Signatory
Acknowledged
by:
MASTER
SERVICER:
XXXXX
FARGO BANK, N.A.
By:
/s/ Xxxxxxxx X. X. Xxxxx
Name:
Xxxxxxxx X. X. Xxxxx
Title: Vice
President
SCHEDULE 1
Mortgage
Loan Schedule
I-1
EXHIBIT
1
Servicing
Agreement
I-1
