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EXHIBIT 99.9
EXECUTION COPY
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ASSIGNMENT, ASSUMPTION
AND RECOGNITION AGREEMENT
among
GOLDMAN SACHS
MORTGAGE COMPANY,
as Assignor
GS MORTGAGE
SECURITIES CORP.,
as
Assignee
and
SUNTRUST
MORTGAGE, INC.,
as Servicer
Dated
as of
October
30, 2006
================================================================================
<PAGE>
ASSIGNMENT, ASSUMPTION
AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND
RECOGNITION AGREEMENT (this "Assignment
Agreement") made this 30th day of October, 2006, among SunTrust Mortgage,
Inc.
("SunTrust" or the "Servicer"), GS Mortgage Securities
Corp., as assignee (the
"Assignee") and Goldman Sachs Mortgage Company, as assignor (the
"Assignor").
WHEREAS, the Assignor and the
Servicer have entered into the Amended
and Restated Flow Seller's Warranties and Servicing Agreement, dated as of
December 1, 2005, as amended by Amendment No. 1 to the Amended and Restated
Flow
Seller's Warranties and Servicing Agreement, dated as of July 1, 2006 (the
"Servicing Agreement") pursuant to which the Servicer sold to the
Assignor
certain mortgage loans listed on the mortgage loan schedule attached as an
exhibit to the Servicing Agreement;
WHEREAS, the Assignee has
agreed on certain terms and conditions to
purchase from the Assignor certain of the mortgage loans (the "Mortgage
Loans"),
which 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"); and
WHEREAS, pursuant to a Master
Servicing and Trust Agreement, dated
as of October 1, 2006 (the "Trust Agreement"), among GS Mortgage
Securities
Corp., as depositor, Deutsche Bank National Trust Company,, as trustee (the
"Trustee") and as a custodian, U.S. Bank National Association, The
Bank of New
York, as a custodian and Wells Fargo Bank, National Association, as master
servicer (in such capacity, the "Master Servicer"), securities
administrator and
as a custodian, the Assignee will transfer the Mortgage Loans to the Trustee,
together with the Assignee's rights under the Servicing Agreement, to the
extent
relating to the Mortgage Loans (other than the rights of the Assignor (and if
applicable its affiliates, officers, directors and agents) 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 all of its right,
title and interest in and to the Mortgage Loans and the Servicing Agreement, to
the extent relating to the Mortgage Loans (other than the rights of the
Assignor
(and if applicable its affiliates, officers, directors and agents) to
indemnification thereunder) 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, from and after the date hereof.
The Servicer hereby acknowledges such assignment and assumption and hereby
agrees to the release of the Assignor from any obligations under the Servicing
Agreement from and after the date hereof, to the extent relating to the
Mortgage
Loans.
(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.
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(c) The Servicer and 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.
2. Accuracy of Servicing
Agreement. 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 as to the Mortgage
Loans and (iv) no notice of termination has been given to the Servicer under
the
Servicing Agreement.
3. Modification of the
Servicing Agreement. Only in so far as it
relates to the Mortgage Loans, the Servicer and the Assignor hereby amend the
Servicing Agreement as follows:
(a) the defined term
"Custodial Account" in Article I, Section 1.1
will be deleted in its entirety and replaced with the following:
"Custodial Account: The
separate Eligible Account or Eligible
Accounts created and maintained pursuant to Section 4.4."
(b) the defined term
"Escrow Account" in Article I, Section 1.1 will
be deleted in its entirety and replaced with the following:
"Escrow Account: The
separate Eligible Account or Eligible Accounts
created and maintained pursuant to Section 4.6."
(c) a new defined term
"Eligible Account" will be added to Article
I, Section 1.1 after the term "Due Period" as follows:
"Eligible Account: An
account or accounts maintained with a
Qualified Depository."
(d) the defined term
"Repurchase Price" in Article I, Section 1.1
will be deleted in its entirety and replaced with the following:
Repurchase Price: A price
equal to (i) the Scheduled Principal
Balance of the Mortgage Loan plus (ii) interest on such Scheduled Principal
Balance at the Mortgage Loan Remittance Rate from the date on which interest
has
last been paid and distributed to the Purchaser to the last day of the month of
repurchase, less amounts received or advanced in respect of such repurchased
Mortgage Loan which are being held in the Custodial Account for distribution in
the month of repurchase, to the extent such amounts are actually paid to the
Purchaser upon the repurchase of the related Mortgage Loan plus (iii) any costs
and damages incurred by the trust in the applicable Securitization Transaction
in connection with any violation by the applicable Mortgage Loan of any
predatory or abusive lending law.
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(e) Section 10.1 (ii) shall
be amended as follows by adding the
following after the word "Agreement":
"(except for
noncompliance with Sections 13.4 or 13.5 of this
Agreement that will result in
an automatic default)".
4. 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, as modified by this Assignment 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.
5. 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
is duly and legally authorized to enter
into this Assignment Agreement and to perform its obligations hereunder and
under the Servicing 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).
6. 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 (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
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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 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.
(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.
7. Additional Representations
and Warranties of the Assignor With
Respect to the Mortgage Loans. The Assignor hereby represents and warrants to
the Assignee as follows:
(a) 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.
(b) 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.
(c) Compliance with
Applicable Laws. With respect to each Mortgage
Loan, 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 such Mortgage Loan,
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including without limitation, any provisions relating to prepayment charges,
have been complied with.
(d) High Cost. No Mortgage
Loan is categorized as "High Cost"
pursuant to the then-current Standard & Poor's Glossary for File Format for
LEVELS(R) Version 5.7, Appendix E, as revised from time to time and in effect
as
of the Original Purchase Date. Furthermore, none of the Mortgage Loans sold by
the Seller are classified as (a) a "high cost mortgage" loan under
the Home
Ownership and Equity Protection Act of 1994 or (b) a "high cost
home,"
"covered," "high-cost," "high-risk home," or
"predatory" loan under any other
applicable state, federal or local law.
(e) Georgia Fair Lending Act.
No Mortgage Loan is secured by a
property in the state of Georgia and originated between October 1, 2002 and
March 7, 2003.
(f) Credit Reporting. The Assignor will
cause to be fully furnished,
in accordance with the Fair Credit Reporting Act and its implementing
regulations, accurate and complete information (i.e., favorable and
unfavorable)
on Mortgagor credit files to Equifax, Experian and Trans Union Credit
Information Company (three of the credit repositories), on a monthly basis.
(g) Arbitration. With respect
to any Mortgage Loan originated on or
after August 1, 2004, neither the related Mortgage nor the related Mortgage
Note
requires the Mortgagor to submit to arbitration to resolve any dispute arising
out of or relating in any way to any of the transactions contemplated by this
Assignment Agreement.
(h) Bring Down. To the
Assignor's knowledge, with respect to each
Mortgage Loan, no event has occurred from and after the closing date set forth
in such Servicing Agreement to the date hereof that would cause any of the
representations and warranties relating to such Mortgage Loan set forth in
Section 3.2 of the Servicing Agreement to be untrue in any material respect as
of the date hereof as if made on the date hereof. With respect to those
representations and warranties which are made to the best of the Assignor's
knowledge, if it is discovered by the Assignor that the substance of such
representation and warranty is inaccurate, notwithstanding the Assignor's lack
of knowledge with respect to the substance of such representation and warranty,
such inaccuracy shall be deemed a breach of the applicable representation and
warranty.
It is understood and agreed
that the representations and warranties
set forth in Sections 6 and 7 shall survive delivery of the respective mortgage
loan documents to the Assignee or its designee 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 8 to repurchase or, in
limited circumstances, substitute 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 Sections 6 and 7. It is further
understood and agreed
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that, except as specifically set forth in Sections 6 and 7, the Assignor shall
be deemed not to have made the representations and warranties in Section 7(h)
with respect to, and to the extent of, representations and warranties made, as
to the matters covered in Section 7(h), by the Servicer in the Servicing
Agreement (or any officer's certificate delivered pursuant thereto).
It is understood and agreed
that, with respect to the Mortgage
Loans, the Assignor has made no representations or warranties to the Assignee
other than those contained in Sections 6 and 7 and no other affiliate of the
Assignor has made any representations or warranties of any kind to the
Assignee.
8. Representations and
Warranties of the Servicer. (a) The Servicer
hereby represents and warrants to the Assignee that, to the extent the Mortgage
Loans will be part of a REMIC, the Servicer shall service the Mortgage Loans
and
any real property acquired upon default thereof (including, without limitation,
making or permitting any modification, waiver or amendment of any term of any
Mortgage Loan) in accordance with the Servicing Agreement, but in no event in a
manner that would (a) cause the REMIC to fail to qualify as a REMIC or (b)
result in the imposition of a tax upon the REMIC (including, but not limited
to,
the tax on prohibited transactions as defined in Section 860F(a)(2) of the
Code,
the tax on contributions to a REMIC set forth in Section 860G(d) of the Code
and
the tax on "net income from foreclosure property" as set forth in
Section
860G(c) of the Code).
(b) Notwithstanding
anything to the contrary in the Servicing
Agreement, on or before March 15 of each calendar year, commencing in 2007, the
Servicer shall deliver to the Purchaser, the Master Servicer and the Depositor
a
report (in form and substance reasonably satisfactory to the Purchase, the
Master Servicer and the Depositor) regarding the Servicer's assessment of
compliance with the Servicing Criteria during the immediately preceding
calendar
year, as required under Rules 13a-18 and 15d-18 of the Exchange Act and Item
1122 of Regulation AB. Such report shall be addressed to the Purchaser, the
Master Servicer and the Depositor and signed by an authorized officer of the
Servicer, and shall address the "Applicable Servicing Criteria" set
forth on
Exhibit 3 attached hereto as applicable.
9. Repurchase of Mortgage
Loans. (a) To the extent that SunTrust is
required under the Servicing Agreement or any related agreement (other than
this
Assignment Agreement) to which SunTrust and Assignor are parties to repurchase
any Mortgage Loan on account of an Early Payment Default, the Assignee shall be
entitled as a result of the assignments hereunder to enforce such obligation
directly against SunTrust as required by and in accordance with the Servicing
Agreement or such related agreement, as applicable. For purposes of this
Section, "Early Payment Default" shall mean any provision of the
Servicing
Agreement or any related agreement to which SunTrust and Assignor are parties
that is designated as an "early payment default" provision or
otherwise provides
for the repurchase of any Mortgage Loan in the event of a default in the first
scheduled payment (or any subsequent scheduled payment as specified in such
provision) that is due under such Mortgage Loan after the closing or other date
specified in such agreement. Notwithstanding the foregoing provisions of this
subsection (a), nothing contained herein shall obligate SunTrust to repurchase
any Mortgage Loan unless, and to the extent that, SunTrust is require to
repurchase such Mortgage Loan under the Servicing Agreement or any related
agreement (other than this Assignment Agreement) to which SunTrust and Assignor
are parties.
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(b) 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
Repurchase Price as defined in the Servicing Agreement or, in limited
circumstances (as set forth below), substitute a Substitute Mortgage Loan (as
defined below) for such Mortgage Loan. Notwithstanding the foregoing, however,
if such breach is a Qualification Defect as defined in the Servicing Agreement,
such cure or repurchase must ta






