ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GOLDMAN SACHS MORTGAGE COMPANY, as Assignor GS MORTGAGE SECURITIES CORP., as Assignee AMERICAN HOME MORTGAGE CORP., as Seller and AMERICAN HOME MORTGAGE SERVICING, INC., as Servicer Dated as of...
among
XXXXXXX
XXXXX MORTGAGE COMPANY, as Assignor
GS
MORTGAGE SECURITIES CORP., as Assignee
AMERICAN
HOME MORTGAGE CORP., as Seller
and
AMERICAN
HOME MORTGAGE SERVICING, INC., as Servicer
Dated
as of
August
1, 2006
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made as of the 1st
day of
August, 2006 (this “Assignment Agreement”), is among AMERICAN HOME MORTGAGE
SERVICING, INC., as servicer (the “Servicer”), AMERICAN HOME MORTGAGE CORP., as
seller (the “Seller”), GS MORTGAGE SECURITIES CORP., as assignee (the
“Assignee”), and XXXXXXX SACHS MORTGAGE COMPANY, as assignor (“GSMC” or the
“Assignor”).
WHEREAS,
GSMC, as purchaser, the Servicer and the Seller have entered into that certain
Second Amended and Restated Mortgage Loan Sale and Servicing Agreement dated
as
of May 1, 2006, as supplemented by the Purchase Price and Terms Letter dated
as
of April 24, 2006, between the Seller, the Servicer and GSMC (the “Sale
Agreement”), pursuant to which the Seller sold certain mortgage loans listed on
the mortgage loan schedule attached as an exhibit to the related Assignment
and
Conveyance Agreement dated May 30, 2006;
WHEREAS,
the Assignee has agreed on certain terms and conditions to purchase from the
Assignor certain mortgage loans, each of which is subject to the provisions
of
the Sale Agreement and is listed on the mortgage loan schedule attached as
Exhibit
1
hereto
(the “Mortgage Loans”); and
WHEREAS,
pursuant to a Master Servicing and Trust Agreement dated as of August 1, 2006
(the “Trust
Agreement”),
among
the Assignee, as depositor, Xxxxx Fargo Bank, N.A., as master servicer (the
“Master Servicer”) and securities administrator, and Deutsche Bank National
Trust Company, as trustee (the “Trustee”) and as custodian (the “Custodian”),
the Assignee will transfer the Mortgage Loans to the Trustee on behalf of the
Trust, together with the Assignee’s rights in the Sale Agreement;
Notwithstanding
anything to the contrary in the Sale Agreement, in the event the Servicer is
obligated to make an advance pursuant to the Sale Agreement, the aggregate
payment due shall be the minimum monthly payment due under the mortgage note,
net of servicing fees.
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, with the exception of its right
to
indemnification from the Seller and the Servicer under the Sale Agreement for
liabilities the Assignor may incur relating to information provided to the
Assignor by the Seller in connection with any Pass-Through Transfer or
securitization of the Mortgage Loans. 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 August 24, 2006, and the Servicer and the Seller
hereby acknowledge such assignment and assumption and hereby agree to the
release of the Assignor from any obligations under the Sale Agreement from
and
after August 24, 2006, to the extent relating to the Mortgage Loans.
Notwithstanding the foregoing, it is understood that the Assignor is not
released from liability (i) for any breaches of the representations and
warranties made in Sections 7.01 and 7.02 of the Sale Agreement, or (ii) for
any
obligation (if any such obligation exists under the Sale Agreement) to indemnify
the Seller or the Servicer for any acts or omissions of the Assignor that
occurred prior to August 1, 2006, and the Assignee is not undertaking any such
liability hereunder.
(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
Seller, the Servicer 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
Seller, 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 Sale Agreement, (ii) the Sale Agreement
is in full force and effect as of the date hereof, and (iii) the Sale Agreement
has not been amended or modified in any respect. The Seller, in its capacity
as
seller under the Sale Agreement, represents and warrants that the
representations and warranties contained in Sections 7.01 and 7.02(A) of the
Sale Agreement with respect to the Mortgage Loans and the Seller, respectively,
are true and correct as of August 24, 2006. The Servicer, in its capacity as
servicer under the Sale Agreement, represents and warrants that the
representations and warranties contained in Section 7.02(B) of the Sale
Agreement with respect to the Servicer are true and correct as of August 24,
2006.
3. 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. It is the intention of the Assignor, the
Servicer, the Seller and the Assignee that the Sale Agreement shall be binding
upon and inure to the benefit of the Seller, the Servicer and the Assignee
and
their successors and assigns.
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,
the Servicer or the Seller other than those contained in the Sale Agreement
or
this Assignment Agreement.
2
(b) Authority.
The Assignee is duly and legally authorized to enter into this Assignment
Agreement and to perform its obligations hereunder and under the Sale Agreement.
(c) Enforceability.
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).
5. 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 (partnership 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 thereof.
(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.
3
(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) HOEPA.
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.
(i) Illinois
Interest Act. No Mortgage Loan that is secured by property located in Illinois
is in violation of the provisions of the Illinois Interest Act (815 Ill. Comp.
Stat. 205/1 et seq.).
(j) 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.
(k) With
respect to each Mortgage Loan, the representations and warranties contained
in
Section 7.02 of the Sale Agreement, to the extent they relate to matters arising
on or after the related Closing Date (as defined in the Sale Agreement), are
true and correct as of the date of this Assignment Agreement. For purposes
of
making the representations and warranties contemplated in the foregoing
sentence, each reference in Section 7.02 of the Sale Agreement to (i) the
“Cut-off Date” shall be deemed to be a reference to August 1, 2006, (ii) the
“Mortgage Loan Schedule” shall be deemed to be a reference to Exhibit
1
hereto and (iii) the “Closing Date” shall be deemed to be a reference to
August
24,
2006 (other than as used in the immediately preceding sentence).
4
(l) Each
Mortgage Loan that is secured by one- to four-family residential real property
(or a leasehold interest therein) has a loan-to-value ratio of 125% or less
(by
Scheduled Principal Balance as of the Cut-off Date), and each Mortgage Loan
that
is secured by multifamily real property (or a leasehold interest therein) or
manufactured housing has a loan-to-value ratio of 100% or less (by Scheduled
Principal Balance as of the Cut-off Date).
It
is
understood and agreed that the representations and warranties set forth in
this
Section 5 shall survive delivery of the respective Mortgage Files 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, the Assignee, the Trustee or the Master Servicer
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 below 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.
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 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 45 days
of
the Defect Discovery Date.
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 Sale Agreement shall remain in full force and effect
in
accordance with its terms.
5
8. 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.
9. 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 electronic mail, telex, telegraph
or telecopier and confirmed by a similar mailed writing, to:
(i) in
the
case of the Servicer,
American
Home Mortgage Servicing, Inc.
0000
Xxxxxx Xxxx, Xxxxx 000
Xxxxxx,
XX 00000
Attention:
Xxxxx Xxxxxxxx, Executive Vice President
E-mail:
xxxxx.xxxxxxxx@xxxxxxxxxx.xxx
With
a
copy to:
American
Home Mortgage Corp.
000
Xxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
Xxxx X. Xxxx, General Counsel
Facsimile:
(000) 000-0000
E-mail:
xxxx.xxxx@xxxxxxxxxx.xxx
or
such
address as may hereafter be furnished by the Servicer;
6
(ii) in
the
case of the Seller,
American
Home Mortgage Corp.
000
Xxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx X. Xxxxxxx, Xx.
Facsimile:
(000) 000-0000
E-Mail:
xxx.xxxxxxx@xxxxxxxxxx.xxx
With
a
copy to:
American
Home Mortgage Corp.
000
Xxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attention:
Xxxx X. Xxxx, General Counsel
Facsimile:
(000) 000-0000
E-mail:
xxxx.xxxx@xxxxxxxxxx.xxx
or
such
address as may hereafter be furnished by the Seller;
(iii) in
the
case of the Assignee,
GS
Mortgage Securities Corp.
000
Xxxxxx Xxxxxx South, Suite 000 Xxxxx
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Attention:
Xxxxxxx Xxxxxxxx
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: Xxxxxxx
Xxxxxxx
Telephone: (000)
000-0000
Facsimile:
(000) 000-0000
or
such
other address as may hereafter be furnished by the Assignee, and
(iv) in
the
case of the Assignor,
Xxxxxxx
Sachs Mortgage Company
000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 Xxxxx
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Attention:
Xxxxxxx Xxxxxxxx
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
7
With
a
copy to:
Xxxxxxx
Sachs Mortgage Company
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxxx
Xxxxxxx
Telephone: (000)
000-0000
Facsimile:
(000) 000-0000
or
such
other address as may hereafter be furnished by the Assignor.
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 shall have
the meaning assigned thereto in the Sale Agreement.
12.
Amendment
to Sale Agreement.
In
connection with the transfer of the Mortgage Loans hereunder, the Servicer
agrees that, from and after the date hereof, each Mortgage Loan transferred
hereunder will be subject to, and serviced under, the Sale Agreement,
provided that,
solely
with respect to the Mortgage Loans transferred hereunder, the following
modification shall be made:
(i)
The
definition of Business Day in Article I of the Sale Agreement is hereby amended
by adding the words “, Maryland or Minnesota” after the words “State of New
York.”
For
the
avoidance of doubt, the Sale Agreement is not hereby amended with respect to
any
other mortgage loans serviced thereunder and shall remain in full force and
effect in accordance with its terms with respect to such other mortgage
loans.
13. Third
Party Beneficiary.
The
Master Servicer shall be considered a Third-Party Beneficiary to this Assignment
Agreement entitled to all rights and benefits hereof as if it were a direct
party to this Assignment Agreement.
8
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
the
day and year first above written.
ASSIGNEE:
GS
MORTGAGE SECURITIES CORP.
By:
__/s/
Xxxxxxxx Gill________________
Name:
Xxxxxxxx Xxxx
Title:
Vice President
ASSIGNOR:
XXXXXXX
SACHS MORTGAGE COMPANY
|
By:
|
Xxxxxxx
Xxxxx Real Estate Funding
|
Corp.,
its General Partner
By:
_/s/
Xxxx X. Finck________________
Name:
Xxxx X. Xxxxx
Title:
Managing Director
SERVICER:
AMERICAN
HOME MORTGAGE SERVICING, INC.
By:_/s/
Xxxx
X. Horn__________________
Name:
Xxxx X. Xxxx
Title:
Executive Vice President
SELLER:
AMERICAN
HOME MORTGAGE CORP.
By:
_/s/
Xxxx X. Horn__________________
Name:
Xxxx X. Xxxx
Title:
Executive Vice President
EXHIBIT
1
MORTGAGE
LOAN SCHEDULE
[To
be
retained in a separate closing binder entitled “GSR 2006-OA1 Mortgage Loan
Schedules” at the Washington D.C. Offices of XxXxx Xxxxxx LLP]
EXHIBIT
2
SALE
AGREEMENT
[Tab
#35]
