ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT

EXECUTION

 

ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT

among

GS MORTGAGE SECURITIES CORP.,

as the Assignor

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE,

as the Assignee

and

NATIONAL CITY MORTGAGE CO.,

as the Servicer

and as acknowledged by

WELLS FARGO BANK, N.A.,

as Master Servicer

 

Dated as of

October 1, 2006

 

 

 

 

ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT

 

ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment Agreement”) made this 1st day of October 2006, among National City Mortgage Co., an Ohio corporation (“Nat City” or the “Servicer”), U.S. Bank National Association., a national banking association, as trustee (the “Assignee”), and GS Mortgage Securities Corp., a Delaware corporation (the “Assignor”), and as acknowledged by Wells Fargo Bank, N.A., as master servicer (the “Master Servicer”).

WHEREAS, Nat City sold to Goldman Sachs Mortgage Company (“GSMC”), on a servicing retained basis, certain mortgage loans pursuant to (i) the Second Amended and Restated Flow Seller’s Warranties and Servicing Agreement dated as of January 1, 2006, as amended by Amendment No. 1 dated as of July 24, 2006 and Amendment No. 2, dated as of August 9, 2006 (the “Flow SWSA”), (ii) the related Warranty Bill of Sale, dated August 16, 2006 (the “Warranty Bill of Sale”) and (iii) the related Trade Confirmation dated as of June 8, 2006 (the “Trade Confirmation”), each by and between GSMC, as purchaser, and Nat City, as seller and servicer;

WHEREAS, GSMC, the Assignor and the Servicer have entered into the Assignment, Assumption and Recognition Agreement dated as of October 1, 2006 (the “GSMC Assignment Agreement”), pursuant to which GSMC has sold to the Assignor certain of the mortgage loans (the “Mortgage Loans”) listed on the mortgage loan schedule attached hereto as Exhibit 1 (the “Mortgage Loan Schedule”) and assigned its rights under the Mortgage Loans and the Flow SWSA, the Warranty Bill of Sale and the Trade Confirmation as they pertain to the Mortgage Loans to the Assignor;

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, U.S. Bank National Association, as trustee (the “Trustee”), Deutsche Bank National Trust Company, as a custodian, and Wells Fargo Bank, N.A., as securities administrator and master servicer (in such capacity, the “Master Servicer”), the Assignor will transfer the Mortgage Loans to the Assignee, together with the Assignor’s rights in the Flow SWSA and the Trade Confirmation;

 

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:

 

 

(a) The Assignor hereby assigns to the Assignee all of its right, title and interest in and to the Mortgage Loans, the Flow SWSA, and the Trade Confirmation, 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 Flow SWSA and the Trade Confirmation, to the extent relating to the 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 Flow SWSA 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 Flow SWSA or the Trade Confirmation.

 

(c) The Servicer and the Assignor shall have the right to amend, modify or terminate each of the Flow SWSA and the Trade Confirmation 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.

 

(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 Mortgage Loans, under any early payment default or first payment default provisions of the Trade Confirmation including, without limitation, the enforcement of the repurchase requirements set forth therein, and shall be entitled to enforce all the obligations of the Servicer thereunder insofar as they relate to the Mortgage Loans.

 

 

2. Accuracy of Agreements.

 

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 Flow SWSA, (ii) each of the Flow SWSA and the Trade Confirmation is in full force and effect as of the date hereof, (iii) neither the Flow SWSA nor the Trade Confirmation has been amended or modified in any respect and (iv) no notice of termination has been given to the Servicer under the Flow SWSA or the Trade Confirmation. The Servicer further represents and warrants that the representations and warranties contained in Section 3.1 of the Flow SWSA are true and correct on and as of October 30, 2006.

 

3. Recognition of Assignee; Modifications.

 

(a) 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, subject to clause (b) below, service the Mortgage Loans for the benefit of the Assignee pursuant to the Flow SWSA, the terms of which are incorporated herein by reference. It is the intention of the Assignor, Servicer and Assignee that the Flow SWSA shall be binding upon and inure to the benefit of the Servicer and the Assignee and their successors and assigns.

 

(b) The Servicer further acknowledges that, from and after the date hereof, it (and any of its successors under the Flow SWSA) will be subject to the supervision of the Master Servicer (except that the Master Servicer shall not be responsible for supervising the servicing of defaulted Mortgage Loans and REO Properties) and that the Master Servicer, on behalf of the Trustee as the owner of the Mortgage Loans, shall have the same rights as were assigned by GSMC, in its capacity as the original purchaser under the Flow SWSA, to the Assignor under the GSMC Assignment Agreement, and further assigned hereunder by the Assignor to the Assignee, on behalf of the trust formed pursuant to the Trust Agreement (the “Trust”). Such rights will include, without limitation, the right to terminate the Servicer under any of the Flow SWSA upon the occurrence of an event of default thereunder, the right to receive all remittances required to be made by the Servicer under the Flow SWSA, the right to receive all monthly reports and other data required to be delivered by the Servicer under the Flow SWSA, indemnification rights and the right to exercise certain rights of consent and approval relating to actions taken by the Servicer.

 

(d) All reports, notices and other written information required to be delivered to the Trustee, as the successor in interest to GSMC and the Assignor under the Sale and Servicing Agreement, shall also be delivered to the Master Servicer at the address set forth in Section 9 hereof, provided, however, that any reports required to be delivered under the Sale and Servicing Agreement (as modified hereby) shall be transmitted by magnetic tape, electronic mail, or other similar media mutually acceptable to the Master Servicer and Servicer. All remittances required to be made to the Trustee, as the successor in interest to GSMC and the Assignor under the Sale and Servicing Agreement, shall be made instead to the Master Servicer by wire transfer to the following account:

 

Notwithstanding anything to the contrary in the Servicing Agreement, with respect to the Mortgage Loans, not later than the tenth calendar day of each month (or if such tenth calendar day is not a Business Day, the immediately succeeding Business Day), the Servicer shall furnish to the Master Servicer (i)(a) monthly loan data in the form of Exhibit 6 hereto or another mutually agreed-upon format, (b) default loan data in the mutually agreed upon format set forth in Exhibit 7 hereto and (c) information regarding the realized losses and gains in the mutually agreed upon format set forth in Exhibit 4 and Exhibit 5 hereto, in each case relating to the period ending on the last day of the preceding calendar month and (ii) all supporting documentation with respect to the information required under the preceding paragraph.

The Servicer shall, on or before March 15th of each year, beginning in 2006, cause, at its sole cost and expense, a firm of independent public accountants, which is a member of the American Institute of Certified Public Accountants, to furnish a statement to the Beneficiary and the Master Servicer to the effect that such firm has examined certain documents and records and performed certain other procedures relating to the servicing of the Mortgage Loans during the immediately preceding fiscal year of the Servicer and that such firm is of the opinion that, on the basis of such examination conducted substantially in compliance with the Uniform Single Attestation Program for Mortgage Bankers, such servicing has been conducted in compliance therewith, except for such exceptions as shall be set forth in such statement.

 

 

5. Representations and Warranties. The Assignee hereby represents and warrants to the Assignor as follows:

 

(a) 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 Flow SWSA, the Trade Confirmation or this Assignment Agreement.

 

(b) 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 Flow SWSA.

 

(c) 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).

 

6. 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 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 Flow SWSA, the Trade Confirmation and this Assignment Agreement.

 

(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 thereof.

 

(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 will if determined adversely to the Assignor materially 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 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, 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 3.2 of the Flow SWSA, to the extent they relate to matters arising on or after the related Closing Date (as defined in the Flow SWSA), are true and correct as of the date of this Assignment Agreement. For purposes of making the representations and warranties contemplated in the this paragraph, each reference in Section 3.2 of the Flow SWSA to (i) the “Cut-off Date” shall be deemed to be a reference to October 1, 2006, (ii) the “Mortgage Loan Schedule” and shall be deemed to be a reference to Exhibit 1 hereto and (iii) the “Closing Date” shall be deemed to be a reference to October 30, 2006.

 

(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” 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 Glossary) and no Mortgage Loan originated on or after October 1, 2002 through March 6, 2003 is governed by the Georgia Fair Lending Act.

For the purposes of this Section 5(j) the following definitions shall apply:

Covered Loan: A Mortgage Loan categorized as Covered pursuant to Appendix E of Standard & Poor’s Glossary.

Home Loan: A Mortgage Loan categorized as Home Loan pursuant to Appendix E of Standard & Poor’s Glossary.

Standard & Poor’s Glossary: The Standard & Poor’s LEVELS® Glossary, as may be in effect from time to time.

High Cost Loan: A Mortgage Loan classified as (a) a “high cost” loan under the Home Ownership and Equity Protection Act of 1994, (b) a “high cost home,” “threshold,” “covered,” (excluding New Jersey “Covered Home Loans” as that term is defined in clause (1) of the definition of that term in the New Jersey Home Ownership Security Act of 2002), “high risk home,” “predatory” or similar loan under any other applicable state, federal or local 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) or (c) a Mortgage Loan categorized as High Cost pursuant to Appendix E of Standard & Poor’s Glossary. For avoidance of doubt, the parties agree that this definition shall apply to any law regardless of whether such law is presently, or in the future becomes, the subject of judicial review or litigation.

 

It is understood and agreed that the representations and warranties set forth in this Section 6 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 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 7 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 6. It is further understood and agreed that the Assignor shall be deemed not to have made the representations and warranties in this Section 6 with respect to, and to the extent of, representations and warranties made, as to the matters covered in this Section 6, by the Servicer in the Flow SWSA (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 6, and no other affiliate of the Assignor has made any representations or warranties of any kind to the Assignee.

 

7. 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. Notwithstanding the foregoing, however, if such breach is a Qualification Defect, such cure or repurchase must take place within forty-five (45) days of the Defect Discovery Date.

 

In the event the Servicer has breached a representation or warranty under the Flow SWSA 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 sixty (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 Flow SWSA) or purchase, or substitute for the Mortgage Loan, 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. 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 Mortgage Loan under the terms of the related Flow SWSA with respect 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 thereof, or to take notice of any breach or default thereof.

 

 

(c) Exhibit K shall be replaced with Exhibit 8 hereto.

 

 

10. 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.

 

11. Notices.

 

Any notices or other communications permitted or required hereunder or under the Flow SWSA 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, National City Mortgage Co., 3232 Newmark Drive, Miamisburg, Ohio 45342, Attention: Hugh Yeary, Deal Manager, Telecopier No.: (937) 910-3093, or such address as may hereafter be furnished by the Servicer; (ii) in the case of the Assignee, U.S. Bank National Association, One Penn Plaza, Suite 2700, New York, New York 10119, Attention: Structured Finance Department, GSR 2006-9F, or such other address as may hereafter be furnished by the Assignee, and (iii) in the case of the Assignor, GS Mortgage Securities Corp., 85 Broad Street, New York, New York 10004, Attention: Michelle Gill, Telecopier No.: (212) 902-3000, or such other address as may hereafter be furnished by the Assignor. (iii) in case of the Master Servicer, Wells Fargo Bank, N.A., P.O. Box 98, Columbia, Maryland 21046, Attention: Corporate Trust Group (GSR 2006-9F); in the case of overnight deliveries, 9062 Old Annapolis Road, Columbia, Maryland 21045.

 

 

12. 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.

 

13. Definitions.

 

Any capitalized term used but not defined in this Assignment Agreement has the same meaning as in the Flow SWSA.

 

14. Third-Party Beneficiary

 

Wells Fargo Bank, N.A. as 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.

 

 

IN WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement the day and year first above written.

 

 

 

 

Acknowledged by:

WELLS FARGO BANK, N.A.,

as Master Servicer

 

By: /s/ Patricia M. F. Russo  

Name: Patricia M. F. Russo

Title: Vice President

 

 

EXHIBIT 1

 

Mortgage Loan Schedule

 

 

EXHIBIT 2

 

Flow SWSA

 

 

EXHIBIT 3

Form of Sarbanes-Oxley Act Certification

 

I, [NAME OF CERTIFYING INDIVIDUAL], a duly elected and acting officer of National City Mortgage Co. (the “Servicer”), hereby certify to [ENTITY NAME] (the “Beneficiary”) with respect to the calendar year immediately preceding the date of this Certificate, as follows:

 

 

 

 

Calculation of Realized Loss/Gain Form 332- Instruction Sheet

 

Credits:

 

Calculation of Realized Loss/Gain Form 332

WELLS FARGO BANK, N.A.

CALCULATION OF REALIZED LOSS/GAIN

If “Yes”, provide deficiency or cramdown amount _______________________________