ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GOLDMAN SACHS MORTGAGE COMPANY, as Assignor GS MORTGAGE SECURITIES CORP., as Assignee and BANK OF AMERICA, NATIONAL ASSOCIATION, as Seller and Servicer Dated as of December 1, 2006
EXECUTION
among
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY,
as
Assignor
GS
MORTGAGE SECURITIES CORP.,
as
Assignee
and
BANK
OF AMERICA, NATIONAL ASSOCIATION,
as
Seller and Servicer
Dated
as of
December
1, 2006
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment Agreement”) made as of
this 1st day of December, 2006, among
Bank of America, National Association, a national banking association organized
and existing under the laws of the United States (“Bank of America”), as
servicer (in such capacity the “Servicer”), GS Mortgage Securities Corp., a
Delaware corporation, as assignee (the “Assignee”), and ▇▇▇▇▇▇▇ Sachs Mortgage
Company, a New York limited partnership, as assignor (the
“Assignor”).
WHEREAS,
the Assignor and the Servicer have entered into an Amended and Restated Flow
Mortgage Loan Sale and Servicing Agreement dated as of July 1, 2005, as amended
by Amendment No. 1, dated August 1, 2006 and Regulation AB Compliance Addendum,
dated March 15, 2006 (the “Sale and Servicing Agreement”), and the related
Commitment Letter dated as of August 8, 2006 (the “Commitment Letter”), pursuant
to which the Servicer sold certain mortgage loans (the “Mortgage
Loans”);
WHEREAS,
the Assignee has agreed on certain terms and conditions to purchase from the
Assignor certain of the Mortgage Loans (the “Assigned Mortgage Loans”), which
Assigned Mortgage Loans are subject to the provisions of the Sale and Servicing
Agreement, and which Assigned Mortgage Loans are together listed on the mortgage
loan schedule attached hereto as Exhibit
1
(the
“Mortgage Loan Schedule”);
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, U.S. Bank
National Association, as trustee (in such capacity, the “Trustee”) and as a
custodian, ▇▇▇▇▇ Fargo Bank, N. A., as securities administrator and master
servicer (in such capacity, the “Master Servicer”) and Deutsche Bank National
Trust Company, as a custodian, the
Assignee will transfer the Assigned Mortgage Loans to the Trustee, together
with
the Assignee’s rights in the Sale and Servicing Agreement related to the
Assigned Mortgage Loans;
NOW,
THEREFORE, in consideration of the mutual promises contained herein and for
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 all of its right, title and interest
in
and to the Assigned Mortgage Loans and the Sale and Servicing Agreement, to
the
extent relating to the Assigned 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 Sale and Servicing Agreement, to the extent
relating to the Assigned Mortgage Loans, from and after the date hereof, and
the
Servicer hereby acknowledges such assignment and assumption and hereby agrees
to
the release of the Assignor from any obligations under the Sale and Servicing
Agreement from and after the date hereof, to the extent relating to the Assigned
Mortgage Loans. Notwithstanding the foregoing, it is understood that the
Assignor is not released from liability for any breaches of any representations
and warranties by the Assignor made in the Sale and Servicing Agreement, 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 that would serve to impair or encumber the Assignor's ownership
interest in the Assigned Mortgage Loans since the date of each of the Sale
and
Servicing Agreement and the Commitment Letter.
(c) The
Servicer and the Assignor shall have the right to amend, modify or terminate
the
Sale and Servicing Agreement and the Commitment Letter 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 or the Assigned Mortgage Loans.
(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 Commitment Letter,
but only to the extent such provision relates to the Assigned Mortgage Loans.
The foregoing shall constitute the Assignor’s consent to the assignment of the
Commitment Letter (to the extent required by the terms of each Commitment
Letter).
(e) Notwithstanding
any provision of the Commitment Letter to the contrary, in the event any
Assigned Mortgage Loan is repurchased by the Seller pursuant to any early
payment default or first payment default provisions of the Commitment Letter,
the “Repurchase Price” payable to the Assignee shall be an amount equal to the
sum of: (a) the outstanding principal balance of such Assigned 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 Bank of America is not the servicer), and (d) any
reasonable costs and expenses incurred by any servicer (so long as Bank of
America is not such servicer) or by the Trustee, including without limitation
costs and expenses incurred in the enforcement of the Seller’s repurchase
obligation under the Commitment Letter. 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 Commitment Letter 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 Assigned Mortgage Loans, under any early payment default
or
first payment default provisions of the Commitment Letter including, without
limitation, the enforcement of the repurchase requirements set forth therein,
and shall be entitled to enforce all the obligations of the Seller thereunder
insofar as they relate to the Assigned Mortgage Loans.
2. Accuracy
of the Sale and Servicing Agreement.
2
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 and Servicing Agreement, (ii)
the
Sale and Servicing Agreement and the Commitment Letter are in full force and
effect as of the date hereof, (iii) neither the Sale and Servicing Agreement
nor
the Commitment Letter has been amended or modified in any respect and (iv)
no
notice of termination has been given to the Servicer under the Sale and
Servicing Agreement or the Commitment Letter. The Servicer, in its capacity
as
seller under the Sale and Servicing Agreement, further represents and warrants
that the representations and warranties contained in Sections 7.01 and 7.02
of
the Sale and Servicing Agreement are true and correct on and as of the Closing
Date (as defined in the Sale and Servicing Agreement).
3. Recognition
of Assignee.
From
and
after the date hereof, the Servicer shall note the transfer of the Assigned
Mortgage Loans to the Assignee in its books and records, shall recognize the
Assignee as the owner of the Assigned Mortgage Loans and shall service the
Assigned Mortgage Loans for the benefit of the Assignee pursuant to the Sale
and
Servicing Agreement, the terms of which are incorporated herein by reference.
It
is the intention of the Assignor, the Servicer and the Assignee that the Sale
and Servicing Agreement shall be binding upon and inure to the benefit of the
Servicer and the Assignee and their respective permitted successors and
assigns.
4. Representations
and Warranties.
(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 Sale and
Servicing Agreement, the Commitment Letter or this Assignment
Agreement.
(b) Authority.
The
Assignee hereby 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 Sale and Servicing Agreement.
(c) Enforceability.
The
Assignee hereby 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 against the Assignee 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) 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 Sale and Servicing Agreement, the Commitment Letter
and
this Assignment Agreement.
3
(b) 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) 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) 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) 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,
if
determined adversely to the Assignor, will materially and adversely affect
its
ability to perform its obligations under this Assignment Agreement.
(f) Except
for the sale to the Assignee, the Assignor has not assigned or pledged any
Mortgage Note related to any Assigned Mortgage Loan or the related Mortgage
or
any interest or participation therein.
(g) The
Assignor has not satisfied, canceled, or subordinated in whole or in part,
or
rescinded the Mortgage related to any Assigned Mortgage Loan, and the Assignor
has not released the Mortgaged Property
from the
lien of the Mortgage related to any Assigned Mortgage Loan, in whole or in
part,
nor has the Assignor executed an instrument that would effect any such release,
cancellation, subordination, or rescission.
4
(h) Mortgage
Loans.
With
respect to each Mortgage Loan, the representations and warranties contained
in
Section 7.01 of the Sale and Servicing Agreement, to the extent they relate
to
matters arising on or after the related Closing Date (as defined in the Sale
and
Servicing 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 7.01 of the
Sale and Servicing Agreement to (i) the “Cut-off Date” shall be deemed to be a
reference to December 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 December 29, 2006.
(i) Predatory
Lending.
Each
Mortgage Loan, at the time it was originated, complied in all material respects
with applicable local, state and federal laws, including, but not limited to,
all applicable predatory and abusive lending laws; and none of the Mortgage
Loans are “high-cost,” “high-cost home” or “covered” loans under any applicable
federal, state or local predatory or abusive lending law.
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
applicable 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 Master Servicer, 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. It is further understood and agreed that the Assignor shall be deemed
not to have made the representations and warranties in Sections 5(h) and 5(i)
with respect to, and to the extent of, representations and warranties made,
as
to the matters covered in Sections 5(h) and 5(i), by the Servicer in the Sale
and Servicing 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 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 Assigned 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
Assigned 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 (such date the “Defect
Discovery Date”),
the
Assignee may enforce the Assignor’s obligation hereunder to purchase such
Assigned Mortgage Loan from the Assignee for an amount no less than an amount
equal to the sum of (i)(a) the outstanding principal balance (less any
unreimbursed advances) and accrued and unpaid interest on such loan or (i)(b)
in
the case of REO property, the fair market value (less any unreimbursed
advances), whichever is less, and (ii) any
costs
and damages incurred by the Trust in connection with any violation by such
loan
of any predatory or abusive lending law.
Notwithstanding the foregoing, however, if such breach is a Qualification
Defect, such cure or repurchase must take place within 75 days of the Defect
Discovery Date.
5
In
the
event the Servicer has breached a representation or warranty under the Sale
and
Servicing Agreement that is substantially identical to a representation or
warranty breached by the Assignor hereunder, the Assignee shall first proceed
against the Servicer. If the Servicer does not, within 60 days after
notification of the breach, take steps to cure such breach (which may include
certifying to progress made and requesting an extension of the time to cure
such
breach, as permitted under the Sale and Servicing Agreement) or purchase, or
substitute for the Assigned Mortgage Loan, the Trustee shall be entitled to
enforce the obligations of the Assignor hereunder to cure such breach or to
repurchase the Assigned Mortgage Loan from the Trust for
an
amount no less than an amount equal to the sum of (i)(a) the outstanding
principal balance (less any unreimbursed advances) and accrued and unpaid
interest on such loan or (i)(b) in the case of REO property, the fair market
value (less any unreimbursed advances), whichever is less, and (ii) any
costs
and damages incurred by the Trust in connection with any violation by such
loan
of any predatory or abusive lending law.
In such
event, the Assignor shall succeed to the rights of the Assignee to enforce
the
obligations of the Servicer to cure such breach or repurchase such Assigned
Mortgage Loan under the terms of the Sale and Servicing Agreement with respect
to such Assigned 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 Sale and Servicing Agreement shall remain in full
force
and effect in accordance with its 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.
6
9. Notices.
Any
notices or other communications permitted or required hereunder 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: (i) in
the
case of the Servicer, Bank of America, National Association, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attn: Servicing Manager or such address as may hereafter be
furnished by the Servicer;
(ii) in
the case of the Assignee, GS Mortgage Securities Corp., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇ House, Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished by the Assignee and (iii)
in
the case of the Assignor, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇,
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 has the
same
meaning as defined in the Sale and Servicing Agreement, and if not defined
therein, as defined in the Trust Agreement.
12. Third-Party
Beneficiary
▇▇▇▇▇
Fargo Bank, N.A., in its capacity as 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.
[SIGNATURE
PAGE FOLLOWS]
7
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
the
day and year first above written.
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ASSIGNEE:
GS
MORTGAGE SECURITIES CORP.
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| By: | /s/ ▇. ▇▇▇▇ | |
|
Name: ▇.
▇▇▇▇
Title: Vice
President
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ASSIGNOR:
▇▇▇▇▇▇▇
SACHS MORTGAGE COMPANY
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By:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Funding Corp.,
its
General Partner
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| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | |
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Name: ▇▇▇▇
▇. ▇▇▇▇▇
Title: Managing
Director
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SERVICER:
BANK
OF AMERICA, NATIONAL
ASSOCIATION
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| By: | /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |
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Name: ▇▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
Title: Vice
President
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EXHIBIT
1
Mortgage
Loan Schedule
EXHIBIT
2
Sale
and Servicing Agreement