ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GOLDMAN SACHS MORTGAGE COMPANY, as Assignor, GS MORTGAGE SECURITIES CORP., as Assignee, and WASHINGTON MUTUAL BANK, as Seller and Servicer Dated as of August 1, 2006
EXECUTION
among
XXXXXXX
XXXXX MORTGAGE COMPANY,
as
Assignor,
GS
MORTGAGE SECURITIES CORP.,
as
Assignee,
and
WASHINGTON
MUTUAL BANK,
as
Seller and Servicer
Dated
as of
August
1, 2006
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment Agreement”) made this 1st
day of August 2006, among Washington Mutual Bank (formerly known as Washington
Mutual Bank, FA), as seller and servicer (the “Seller” and the “Servicer”,
respectively), GS Mortgage Securities Corp., a Delaware corporation, as assignee
(the “Assignee”), and Xxxxxxx Sachs Mortgage Company, a New York limited
partnership, as assignor (the “Assignor”);
WHEREAS,
the
Assignor and the Servicer have entered into the Servicing Agreement dated
as of
December 1, 2003, as amended by the First Amendment to Servicing Agreement
dated
as of October 1, 2004, and as further amended by the Regulation AB Amendment
to
Servicing Agreement dated as of April 1, 2006, (the “Servicing Agreement”) and
the Assignor and the Sellers are parties to the Mortgage Loan Purchase and
Sale
Agreement dated as of December 1, 2003, as amended by the First Amendment
to
Mortgage Loan Purchase Agreement dated as of October 1, 2004, and as further
amended by the Regulation AB Amendment to Mortgage Loan Purchase and Sale
Agreement dated as of April 1, 2006 (the “Purchase Agreement”);
WHEREAS,
the
Assignee has agreed on certain terms and conditions to purchase from the
Assignor certain mortgage loans (the “Mortgage Loans”) serviced under the
Servicing Agreement which Mortgage Loans are subject to the provisions of
the
Servicing Agreement and are listed on the mortgage loan schedule attached
as
Exhibit 1 hereto (the “Mortgage Loan Schedule”);
WHEREAS,
pursuant to a Master Servicing and Trust Agreement, dated as of August 1,
2006
(together with the August 2006 Edition of the Standard Terms thereto, the
“Trust
Agreement”), among GS Mortgage Securities Corp., as depositor, Xxxxx Fargo Bank,
N.A., as master servicer (the “Master Servicer”) and securities administrator
(the “Securities Administrator”), Deutsche
Bank National Trust Company, as a custodian, JPMorgan Chase Bank, National
Association, as a custodian, and
U.S.
Bank, National Association, as trustee (the “Trustee”) and a custodian, the
Assignee will transfer the Mortgage Loans to the Trustee, together with the
Assignee’s rights in the Purchase Agreement and the Servicing
Agreement;
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 all of its right, title and interest
in
and to the Mortgage Loans, the Purchase Agreement and the Servicing Agreement,
to the extent relating to the 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 Purchase Agreement and the Servicing
Agreement, to the extent relating to the Mortgage Loans from and after the
date
hereof, 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 Servicing Agreement and the Purchase Agreement, respectively, from
and
after the date hereof, to the extent relating to the Mortgage Loans.
Notwithstanding the foregoing, any remittance to be made to the Assignee,
as
successor in interest to the Assignor under the Agreement, during June of
2006
shall be made to the Assignor, and the Assignor agrees to forthwith transfer
any
such remittance to the Assignee or its designee.
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(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 Servicing Agreement.
(c) The
Servicer and the Assignor shall have the right to amend, modify or terminate
the
Servicing Agreement and the Seller and the Assignor shall have the right
to
amend, modify or terminate the Purchase Agreement, in each case, 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 Servicing Agreement and the Purchase Agreement.
(a) 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
Servicing Agreement, (ii) the Servicing Agreement is in full force and effect
as
of the date hereof, (iii) the Servicing Agreement has not been amended or
modified in any respect except as set forth in Exhibit 2 and (iv) no notice
of
termination has been given to the Servicer under the Servicing
Agreement.
(b) The
Seller and the Assignor represent and warrant to the Assignee that (i) attached
hereto as Exhibit 3 is a true, accurate and complete copy of the Purchase
Agreement, (ii) the Purchase Agreement is in full force and effect as of
the
date hereof and (iii) the Purchase Agreement has not been amended or modified
in
any respect except by an amendment attached hereto as part of Exhibit
3.
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 and shall service the Mortgage Loans for
the
benefit of the Assignee pursuant to the Servicing Agreement, the terms of
which
are incorporated herein by reference. It is the intention of the Assignor,
Servicer and Assignee that the Servicing Agreement shall be binding upon
and
inure to the benefit of the Servicer and the Assignee and their successors
and
assigns. It is the intention of the Assignor, the Seller and Assignee that
the
Purchase Agreement shall be binding upon and inure to the benefit of the
Seller
and the Assignee and their successors and assigns.
4. Representations
and Warranties of the Assignee.
The
Assignee hereby represents and warrants to the Assignor, the Seller and the
Servicer as follows:
(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, the Seller or the Servicer other than those contained in
the
Purchase Agreement, the Servicing Agreement or this Assignment
Agreement.
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(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, the Purchase Agreement 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).
5. Representations
and Warranties of the Assignor.
The
Assignor hereby represents and warrants to the Assignee, the Seller and the
Servicer 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 Purchase Agreement, 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 thereby 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 partnership 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.
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(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.
(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 the Mortgage, and the Assignor has not released the Mortgaged Property
from the lien of the 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) With
respect to each Mortgage Loan, the representations and warranties contained
in
Section 3.1 of the Purchase Agreement, to the extent they relate to matters
arising on or after the related Closing Date (as defined in the Purchase
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 3.1 of the Purchase 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 25.
(i) 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” (excluding home loans
defined as “covered home loans” pursuant to the New Jersey Home Ownership Act of
2002) loans under any applicable federal, state or local predatory or abusive
lending law.
(j) No
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.
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It
is
understood and agreed that the representations and warranties set forth in
this
Section 5 shall survive delivery of the respective Collateral Files to the
custodian and shall inure to the benefit of the Assignee, the Seller, the
Servicer and their respective 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
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. Notwithstanding the foregoing, however,
if such
breach is a Qualification Defect, such cure or repurchase must take place
within
75 days of the date such defect is discovered.
In
the event
the Seller has breached a representation or warranty under the Purchase
Agreement that is substantially identical to a representation or warranty
breached by the Assignor hereunder, the Assignee shall first proceed against
such Seller. If such Seller does not cure such breach or
purchase the Mortgage Loan,
in
accordance with Section 3.3 of the Purchase Agreement, the Assignee shall
be
entitled to enforce the obligations of the Assignor hereunder to cure such
breach or to repurchase the Mortgage Loan from the trust formed pursuant
the
Trust Agreement. In such event, the Assignor shall succeed to the rights
of the
Assignee to enforce the obligations of such Seller to cure such breach or
repurchase such Mortgage Loan under the terms of the Purchase Agreement with
respect to such Mortgage Loan.
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Except
as
specifically set forth herein, the Assignee shall have no responsibility
to
enforce any provision of the Purchase Agreement, to oversee compliance thereof,
or to take notice of any breach or default thereof.
7. Indemnification
by Servicer.
The
Servicer
shall indemnify and hold harmless the Assignee, its present and former
directors, officers, employees and assignees (each, an “Indemnified Party”)
against any and all third party claims, losses, penalties, damages, fines,
forfeitures, legal fees and related costs, judgments and any other costs,
fees
and expenses that the Indemnified Party may sustain (for avoidance of doubt,
including those payable by an Indemnified Party to any third party, including
affiliates of such Indemnified Party) in any way related to the failure of
the
Servicer to service the Mortgage Loans in compliance with the terms of the
Servicing Agreement and this Agreement; provided, however, the Servicer shall
not be liable hereunder with respect to (i) any action or inaction resulting
from the written direction or consent of an Indemnified Party, (ii) any action
or inaction resulting from an Indemnified Party’s failure to cause any
Collateral File (or portion thereof) to be released to the Servicer pursuant
to
Sections 2.18 or 4.2(c) of the Servicing Agreement, or (iii) any action or
inaction resulting from an Indemnified Party’s failure to comply with
Section 5.1(b) or Section 5.6 of the Servicing Agreement.
8. Continuing
Effect.
Except
as
contemplated hereby, the Servicing Agreement and the Purchase Agreement shall
remain in full force and effect in accordance with their respective
terms.
9. 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.
10. Notices.
Any
notices
or other communications permitted or required hereunder or under the Purchase
Agreement or 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:
(i) in the case of the Servicer, Washington Mutual Bank, 00000 Xxxx Xxxxxxxx
Xxx., Xxxxxxxxx, XX 00000, Attention: Vice President, Investor Reporting,
Telephone: 000-000-0000, Facsimile: 000-000-0000, or such address as may
hereafter be furnished by the Servicer; (ii) in the case of the Seller, the
address of the Seller set forth in Section 7.6 of the Purchase Agreement
or
such
address as may hereafter be furnished by the Seller; (iii) in the case of
the
Assignee, GS Mortgage Securities Corp., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxxxxx, Telecopier No.: (000) 000-0000 or such
other
address as may hereafter be furnished by the Assignee, and (iv) in the case
of
the Assignor, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
Xxxxx, Telecopier No.: (000) 000-0000 or such other address as may hereafter
be
furnished by the Assignor.
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11. 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.
12. Definitions.
Any
capitalized term used but not defined in this Assignment Agreement has the
same
meaning as in the Purchase Agreement and the Servicing Agreement.
13. [Reserved.]
14. 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.
8
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: | ||
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Name:
Title:
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ASSIGNOR:
XXXXXXX
XXXXX MORTGAGE COMPANY
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| By: | Xxxxxxx
Sachs Real Estate Funding
Corp.,
its General Partner
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| By: | ||
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Name:
Title:
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SELLER:
WASHINGTON
MUTUAL BANK
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| By: | ||
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Name:
Title:
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EXHIBIT
1
(Mortgage
Loan Schedule)
EXHIBIT
2
(Servicing
Agreement)
EXHIBIT
3
(Purchase
Agreement)
