ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GOLDMAN SACHS MORTGAGE COMPANY, as Assignor GS MORTGAGE SECURITIES CORP. as Assignee and COUNTRYWIDE HOME LOANS, INC., as Seller Dated as of June 1, 2007
EXECUTION
among
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY,
as
Assignor
GS
MORTGAGE SECURITIES CORP.
as
Assignee
and
COUNTRYWIDE
HOME LOANS, INC.,
as
Seller
Dated
as of
June
1, 2007
This
Assignment, Assumption and Recognition Agreement (this “Assignment
Agreement”)
dated
as of June 1, 2007, among GS Mortgage Securities Corp., as assignee (the
“Assignee”),
▇▇▇▇▇▇▇ Sachs Mortgage Company, a New York limited partnership (the
“Assignor”)
and
Countrywide Home Loans, Inc., as seller (the “Seller”):
WHEREAS,
the Assignor and Countrywide Home Loans Servicing, LP (the “Servicer”)
have
entered into that certain Servicing Agreement, dated as of July 1, 2004, (the
“Countrywide
Servicing Agreement”),
as
amended by Amendment Reg AB between the Assignor and the Seller, dated as of
January 1, 2006 (“Amendment
Reg AB,”
and
together with the Countrywide Servicing Agreement, the “Servicing
Agreement”),
pursuant to which the Servicer agreed to service for the benefit of the Assignor
certain mortgage loans listed on the mortgage loan schedule attached as an
exhibit to the Purchase Confirmations (as defined in the Sale
Agreement);
WHEREAS,
the Assignee has purchased from the Assignor, the Assignor’s rights, with
respect to the Mortgage Loans (as defined below), under the Servicing Agreement
pursuant to that certain Assignment, Assumption and Recognition Agreement,
dated
as of June 1, 2007, among the Assignor, the Assignee and the
Servicer;
WHEREAS,
the Assignor and the Seller have entered into that certain Master Mortgage
Loan
Purchase Agreement, dated as of July 1, 2004, as amended by Amendment Reg AB
(the “Sale
Agreement”),
pursuant to which the Seller sold to the Assignor certain mortgage loans listed
on the mortgage loan schedule attached as an exhibit to each Purchase
Confirmation (as defined in the Sale 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 the Sale Agreement
and are listed on the mortgage loan schedule attached as Exhibit
A
hereto;
and
WHEREAS,
pursuant to a Master Servicing and Trust Agreement, dated as of June 1, 2007
(the “Trust
Agreement”),
among
the Assignee, as depositor, U.S. Bank National Association, as trustee (in
such
capacity, the “Trustee”),
▇▇▇▇▇
Fargo Bank, N.A., as master servicer (in such capacity, the “Master
Servicer”)
and
securities administrator (in such capacity, the “Securities
Administrator”),
and
the custodians listed therein, the Assignee will transfer the Mortgage Loans
to
the Trustee, together with the Assignee’s rights and obligations under the
Servicing Agreement, to the extent relating to the Mortgage Loans, and together
with the Assignee’s rights and obligations under the Sale Agreement, to the
extent relating to the Mortgage Loans (other than the rights of the Assignor
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:
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1. The
Assignor hereby grants, transfers and assigns to Assignee all of the right,
title, interest and obligations of the Assignor, as Purchaser, in, to and under
the Mortgage Loans and the Sale Agreement, but only to the extent relating
to
the Mortgage Loans (other than the rights of the Assignor to indemnification
thereunder).
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.
The
Seller 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 to the extent permitted by such
Sale Agreement; provided,
however,
that
such amendment, modification or termination shall not affect or be binding
on
the Assignee.
2. From
and
after the date hereof, the Seller shall note the transfer of the Mortgage Loans
to the Assignee in its books and records, and shall recognize the Assignee
as
the owner of the Mortgage Loans. It is the intention of the Assignor, Seller
and
Assignee that the Sale Agreement shall be binding upon and inure to the benefit
of the Seller and the Assignee and their permitted successors and
assigns.
The
Seller represents and warrants to the Assignee that (a) the Sale
Agreement is in full force and effect as of the date hereof and (b) the
provisions thereof have not been waived, amended or modified in any respect,
except as modified or amended herein, nor have any notices of termination been
given thereunder.
3. The
Assignee warrants and represents to, and covenants with, the Assignor and the
Seller as follows:
(a) The
Assignee is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its organization, and has all requisite power and
authority to acquire, own and purchase the Mortgage Loans;
(b) The
Assignee has full power and authority to execute, deliver and perform under
this
Assignment Agreement, and to consummate the transactions set forth herein.
The
consummation of the transactions contemplated by this Assignment Agreement
is in
the ordinary course of the Assignee’s business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Assignee’s organizational documents, or any legal restriction, or any material
agreement or instrument to which the Assignee is now a party or by which it
is
bound, or result in the violation of any law, rule, regulation, order, judgment
or decree to which the Assignee or its property is subject. The execution,
delivery and performance by the Assignee of this Assignment Agreement, and
the
consummation by it of the transactions contemplated hereby, have been duly
authorized by all necessary corporate action of the Assignee. This Assignment
Agreement has been duly executed and delivered by the Assignee and constitutes
the valid and legally binding obligation of the Assignee enforceable against
the
Assignee in accordance with its respective terms except as enforceability
thereof may be limited by bankruptcy, insolvency, or reorganization or other
similar laws now or hereinafter in effect relating to creditor’s rights
generally and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or in law;
-2-
(c) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Assignee in connection with the execution, delivery or performance by the
Assignee of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby; and
(d) The
Assignee agrees to be bound, as Purchaser, by all of the terms, covenants and
conditions of the Sale Agreement and the Mortgage Loans, and from and after
the
date hereof, the Assignee assumes for the benefit of each of the Seller and
the
Assignor all of the Assignor’s obligations as Purchaser thereunder, with respect
to the Mortgage Loans.
4. The
Seller warrants and represents to, and covenants with, the Assignee
that:
(a) The
Seller is not a natural person or a general partnership and is duly organized,
validly existing and in good standing under the laws of the jurisdiction of
its
formation;
(b) The
Seller has full power and authority to execute, deliver and perform under this
Assignment Agreement, and to consummate the transactions set forth herein.
The
consummation of the transactions contemplated by this Assignment Agreement
is in
the ordinary course of the Seller’s business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Seller’s charter or by-laws, or any legal restriction, or any material agreement
or instrument to which the Seller is now a party or by which it is bound, or
result in the violation of any law, rule, regulation, order, judgment or decree
to which the Seller or its property is subject. The execution, delivery and
performance by the Seller of this Assignment Agreement, and the consummation
by
it of the transactions contemplated hereby, have been duly authorized by all
necessary corporate action of the Seller. This Assignment Agreement has been
duly executed and delivered by the Seller and constitutes the valid and legally
binding obligation of the Seller enforceable against the Seller in accordance
with its respective terms except as enforceability thereof may be limited by
bankruptcy, insolvency, or reorganization or other similar laws now or
hereinafter in effect relating to creditors’ rights generally and by general
principles of equity, regardless of whether such enforceability is considered
in
a proceeding in equity or in law; and
(c) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or made
by
the Seller in connection with the execution, delivery or performance by the
Seller of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby.
5. From
and
after the date hereof, the Seller shall recognize the Assignee as the owner
of
the Mortgage Loans, and shall look solely to the Assignee for performance from
and after the date hereof of the Assignor’s obligations under the Sale Agreement
that arise from and after the date hereof with respect to the Mortgage Loans,
provided that the Assignor retains those obligations that arise prior to the
date hereof.
-3-
The
Seller hereby represents and warrants, for the benefit of the Assignee, that
(i)
the representations and warranties set forth in Section 3.02 of the Sale
Agreement are true and correct, as to the related Mortgage Loans, as of the
Closing Date (as such term is defined in the Sale Agreement) and (ii) the
representations and warranties set forth in Section 3.01 of the Sale Agreement
(except with respect to Section 3.01(j)) are true and correct as of the date
hereof.
6. The
Assignor hereby represents and warrants to the Assignee as of the date hereof,
unless otherwise stated below, 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 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 hereof.
(d) Authorization;
No Breach.
The
execution and delivery of this Assignment Agreement have been duly authorized
by
all necessary 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.
-4-
(f) Prior
Assignments; Pledges.
As of
June 29, 2007, 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.
As of
June 29, 2007, 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) Compliance
with Applicable Laws.
As of
June 29, 2007, 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.
(i) HOEPA.
As of
June 29, 2007, no Transferred 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.
(j) Bring
Down.
Nothing
has occurred or failed to occur from and after the closing date set forth in
the
Sale Agreement to June 29, 2007 that would cause any of the representations
and
warranties relating to the Mortgage Loans set forth in Section 3.02 of the
Sale
Agreement to be incorrect in any material respects as of the date hereof as
if
made on the date hereof.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 6 shall survive delivery of the respective Collateral File 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 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 hereof 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 Section 6(j) with respect to, and to
the
extent of, representations and warranties made, as to the matters covered in
Section 6(j), by the Seller in the Sale Agreement (or any officer’s certificate
delivered pursuant thereto).
-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 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 90 days of the earlier of either discovery by the Assignor
of
such breach or 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
(as defined in the Sale Agreement), then such cure or repurchase must take
place
within 90 days of discovery of such Qualification Defect.
In
the
event of a repurchase of any Mortgage Loan by the Assignor, the Assignee shall
promptly deliver to the Assignor or its designee the related Collateral File
and
shall assign to the Assignor all of the Assignee’s rights and obligations under
the Sale Agreement and the Servicing Agreement, but only insofar as the Sale
Agreement and the Servicing Agreement relate to such Mortgage Loan and only
pursuant to an assignment, assumption and recognition agreement reasonably
acceptable to the Seller.
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.
8. Notice
Addresses. Any
notices or other communications permitted or required hereunder or under the
Servicing Agreement or 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.
(a) The
Assignor’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
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▇▇▇▇▇▇▇
Sachs Mortgage Company
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇ House
(b) The
Assignee’s address for purposes for all notices and correspondence related to
the Mortgage Loans and this Assignment Agreement is:
GS
Mortgage Securities Corp.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇▇▇ House
(c) The
Seller’s address for purposes of all notices and correspondence related to the
Mortgage Loans and this Assignment Agreement is:
Countrywide
Home Loans, Inc.
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇
With
a
copy to:
Countrywide
Home Loans, Inc.
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
9. 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. 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.
11. This
Assignment Agreement shall inure to the benefit of the successors and assigns
of
the parties hereto. Any entity into which the Seller, the Assignor or the
Assignee may be merged or consolidated shall, without the requirement for any
further writing, be deemed the Seller, the Assignor or the Assignee,
respectively, hereunder.
12. Any
capitalized term used but not defined in this Assignment Agreement has the
meaning assigned thereto in the Sale Agreement or Servicing Agreement, as
applicable.
-7-
13. No
term
or provision of this Assignment Agreement may be waived or modified unless
such
waiver or modification is in writing and signed by the party against whom such
waiver or modification is sought to be enforced.
14. This
Assignment Agreement shall survive the conveyance of the Mortgage Loans and
the
assignment of the Sale Agreement by the Assignor.
15. Notwithstanding
the assignment of the Sale Agreement of either the Assignor or Assignee, this
Assignment Agreement shall not be deemed assigned by the Seller or the Assignor
unless assigned by separate written instrument agreed upon by all applicable
parties.
16. For
the
purpose of facilitating the execution of this Assignment Agreement as herein
provided and for other purposes, this Assignment Agreement may be executed
simultaneously in any number of counterparts, each of which counterparts shall
be deemed to be in original, and such counterparts shall constitute and be
one
and the same instrument.
[SIGNATURE
PAGE FOLLOWS]
-8-
IN
WITNESS WHEREOF, the parties have caused this Assignment Agreement to be
executed by their duly authorized officers as of the date first above
written.
GS
MORTGAGE SECURITIES CORP., as
Assignee
By: /s/
▇▇▇▇▇▇▇▇
▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Vice President
▇▇▇▇▇▇▇
SACHS MORTGAGE COMPANY, as Assignor
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Funding Corp.,
its General Partner
By:
/s/
▇▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Managing Director
COUNTRYWIDE
HOME LOANS, INC., in its capacity as Seller
By:
/s/
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title:
Senior Vice President
Exhibit
A
Mortgage
Loans
A-1