ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT Among GOLDMAN SACHS MORTGAGE COMPANY, as Assignor GS MORTGAGE SECURITIES CORP., as Assignee and WELLS FARGO BANK, N.A. as Servicer Dated as of February 28, 2007
EXECUTION
Among
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY,
as
Assignor
GS
MORTGAGE SECURITIES CORP.,
as
Assignee
and
▇▇▇▇▇
FARGO BANK, N.A.
as
Servicer
Dated
as of
February
28, 2007
This
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this 28th day of February,
2007, (this “Assignment
Agreement”)
is
among ▇▇▇▇▇ Fargo Bank, N.A. (“▇▇▇▇▇
Fargo”),
as
servicer ( in such capacity, the “Servicer”),
GS
Mortgage Securities Corp., as assignee (the “Assignee”)
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company (“GSMSC”),
as
assignor (the “Assignor”).
WHEREAS,
Bank of America, National Association (“Bank
of America”)
and
▇▇▇▇▇ Fargo have entered into an Amended and Restated Master Mortgage Loan
Purchase Agreement, dated as of December 1, 2005 (the “2005
Purchase Agreement”),
an
Amended and Restated Master Seller’s Warranties and Servicing Agreement, dated
as of December 1, 2005 (the “2005
MSWSA”)
and
the Assignment and Conveyance Agreement (WFHM 2005-W97), dated December 15,
2005
(the “2005
ACA”),
pursuant to which ▇▇▇▇▇ Fargo sold certain mortgage loans to Bank of America
(the “2005
▇▇▇▇▇ Fargo Mortgage Loans”);
WHEREAS,
Bank of America and ▇▇▇▇▇ Fargo have entered into a Second Amended and Restated
Master Mortgage Loan Purchase Agreement, dated as of May 1, 2006 (the
“2006
MSWSA”)
and
the Assignment and Conveyance Agreement (WFHM 2006-W33), dated May 24, 2006
(the
“2006
ACA”),
pursuant to which ▇▇▇▇▇ Fargo sold certain mortgage loans to Bank of America
(the “2006
▇▇▇▇▇ Fargo Mortgage Loans”
and,
together with the 2005 ▇▇▇▇▇ Fargo Mortgage Loans, the “▇▇▇▇▇
Fargo Mortgage Loans”);
WHEREAS,
Bank of America and DLJ Mortgage Capital, Inc.
(“DLJ
Mortgage”)
have
entered into a Mortgage Loan Purchase Agreement, dated as of July 1, 2006
(the
“DLJ
Purchase Agreement”),
pursuant to which DLJ Mortgage sold certain mortgage loans to Bank of America
(the “DLJ
Mortgage Loans”);
WHEREAS,
the Assignor has agreed on certain terms and conditions to purchase from
Bank of
America, and Bank of America has assigned and conveyed to the Assignor, certain
of the ▇▇▇▇▇ Fargo Mortgage Loans and certain of the DLJ Mortgage Loans (the
“Mortgage
Loans”)
pursuant to (i) in the case of the ▇▇▇▇▇ Fargo Mortgage Loans, the Assignment,
Assumption and Recognition Agreement dated as of February 26, 2007, among
Bank
of America, the Servicer and the Assignor (the “Bank
of America Underlying Assignment Agreement”),
(ii)
in the case of the DLJ Mortgage Loans, the Assignment, Assumption, and
Recognition Agreement dated as of February 26, 2007 among Bank of America,
DLJ
Mortgage, the Servicer and the Assignor (the “DLJ
Underlying Assignment Agreement”
and,
together with the Bank of America Underlying Assignment Agreement, the
“Underlying
Assignment Agreements”)
and
(iii) the related trade confirmation dated as of January 3, 2007 (the
“Trade
Confirmation”)
between the Assignor and Bank of America, which mortgage loans are listed
on the
mortgage loan schedule (the “Mortgage
Loan Schedule”)
attached as Exhibit
1
hereto;
WHEREAS,
the Mortgage Loans are being serviced and administered by the Servicer for
the
benefit of the Assignor pursuant to the Second Amended and Restated Master
Seller’s Warranties and Servicing Agreement dated as of November 1, 2005,
by and between the Assignor and the Servicer (the “Servicing
Agreement”
and,
together with the Underlying Assignment Agreements, the “Agreements”);
and
1
WHEREAS,
pursuant to a Master Servicing and Trust Agreement dated as of February 1,
2007
(the “Trust
Agreement”),
among
the Assignee, as depositor, U.S. Bank National Association, as trustee (the
“Trustee”),
▇▇▇▇▇
Fargo, as securities administrator and master servicer (in such capacity,
the
“Master
Servicer”)
and
Deutsche Bank National Trust Company, as custodian, the Assignee will transfer
the Mortgage Loans to the Trustee, together with the Assignee’s rights under the
Agreements and Section S of the Trade Confirmation, 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:
1. Servicing.
The
Servicer agrees, with respect to the Mortgage Loans, to perform and observe
the
duties, responsibilities and obligations that are to be performed and observed
under the provisions of the Servicing Agreement, except as otherwise provided
herein, and that the provisions of the Servicing Agreement, as modified herein,
are and shall be a part of this Assignment Agreement to the same extent as
if
set forth herein in full.
2. Assignment
and Assumption.
(a) The
Assignor hereby assigns to the Assignee, as of the date hereof, all of its
right, title and interest in and to the Mortgage Loans and the Agreements
and
all of its rights under Section S of 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 Agreements and Section S of the Trade
Confirmation, to the extent relating to the Mortgage Loans, from and after
February 28, 2007; 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 February 28, 2007, 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 Underlying Assignment
Agreements.
(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.
3. Accuracy
of Agreements.
The
Servicer and the Assignor represent and warrant to the Assignee that (i)
attached hereto as Exhibit
2
are
true, accurate and complete copies of the Agreements, (ii) the Agreements
are in
full force and effect as of the date hereof and (iii) the Agreements have
not
been further amended or modified in any respect.
2
The
Servicer further represents and warrants that (i) no notice of termination
has
been given to the Servicer under the Servicing Agreement and (ii) the
representations and warranties contained in Section 3.1 of the Servicing
Agreement, as modified by the applicable Underlying Assignment Agreement,
are
true and correct as of February 26, 2007.
The
Assignor further represents and warrants to the Assignee that (i) attached
hereto as Exhibit
3
is a
true, accurate and complete copy of Section S of the Trade Confirmation,
(ii)
the Trade Confirmation is in full force and effect as of the date hereof
and
(iii) the Trade Confirmation has not been further amended or modified in
any
respect.
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, notwithstanding anything herein or in
the
Agreements to the contrary, shall service all of the Mortgage Loans for the
benefit of the Assignee pursuant to the Agreements, the terms of which are
incorporated herein by reference, whether or not such Mortgage Loans have
been
serviced pursuant to such agreement prior to the date hereof. It is the
intention of the Assignor, the Servicer, and the Assignee that the Agreements
shall be binding upon and inure to the benefit of the Servicer and the Assignee
and their successors and assigns. In addition, it is the intention of the
Assignor and the Assignee that Section S of the Trade Confirmation shall
be
binding upon and inure to the benefit of the Assignee and its 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 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 statement
or
representations of the Assignor or the Servicer other than those contained
in
the Agreements or this Assignment Agreement.
(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 and under the Agreements and Section S of the Trade
Confirmation.
(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).
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 to enter into and perform its obligations under the
Agreements, the Trade Confirmation and this Assignment
Agreement.
3
(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.
(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 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.
4
(h) Compliance
with Applicable Laws. 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.
No
Mortgage Loan is classified as a “high cost” mortgage loan under Section 32 of
the Home Ownership and Equity Protection Act of 1994, as amended, and no
Mortgage Loan is considered a “high cost” mortgage 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). 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
and no Mortgage Loan originated on or after October 1, 2002 through March
6,
2003 is governed by the Georgia Fair Lending Act.
(k) Bring
Down. With respect to the Agreements, nothing has occurred or failed to occur
from and after the closing date set forth in the Underlying Assignment Agreement
to February 28, 2007 that would cause any of (i) with respect to those Mortgage
Loans purchased pursuant to the 2005 ACA, the representations and warranties
contained in Section 3.02 of the 2005 MSWSA, (ii) with respect to those
Mortgage Loans purchased pursuant to the 2006 ACA, the representations and
warranties contained in Section 3.02 of the 2006 MSWSA or (iii) with
respect to those Mortgage Loans purchased pursuant to the DLJ Purchase
Agreement, the representations and warranties contained in
Sections 4.1(i)-(vi) of such 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 Mortgage Loan Documents
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 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, except as specifically set forth in this
Section 6, the Assignor shall be deemed not to have made the representations
and
warranties in Section 6(k) with respect to, and to the extent of,
representations and warranties made, as to the matters covered in Section
6(k),
by the Servicer in the Agreements (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.
5
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 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 Purchase Price (as defined in the
Trust
Agreement). Notwithstanding the foregoing, however, if such breach is a
Qualification Defect, such cure or repurchase must take place within 75 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 Custodial Mortgage
File and shall assign to the Assignor all of the Assignee’s rights under the
Agreements and Section S of the Trade Confirmation, but only insofar as the
Agreements or Section S of the Trade Confirmation relate 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
hereof
or to take notice of any breach or default thereof.
8. Continuing
Effect.
Except
as contemplated hereby, the Agreements and the Trade Confirmation 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.
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.
6
10. Notices.
Any
notices or other communications permitted or required hereunder or under
the
Agreements 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:
(a) in
the
case of the Servicer,
▇▇▇▇▇
Fargo Bank, N.A.
1
Home
Campus, MAC #X2302-033
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
▇▇▇▇ ▇▇▇▇▇
Tel:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
With
a
copy to:
▇▇▇▇▇
Fargo Bank, NA.
1
Home
Campus, MAC #X2401-06T
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General
Counsel
Tel: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished by the Servicer;
(b) in
the
case of the Assignee,
GS
Mortgage Securities Corp.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇
House
Tel.: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished by the Assignee;
(c) in
the
case of the Assignor,
▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Company
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Tel.: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
7
or
such
other address as may hereafter be furnished by the Assignor; and
(d) In
the
case of the Master Servicer,
▇▇▇▇▇
Fargo Bank, N.A.
▇.▇.
▇▇▇ ▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Group (GSR 2007-1F)
(or
in the case of overnight deliveries,
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ 21045)
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished by the Master Servicer.
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 shall
have
the meaning assigned thereto in the Agreements or the Trust Agreement, as
applicable.
[Signature
Page Follows]
8
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
the
day and year first above written.
ASSIGNEE:
GS
MORTGAGE SECURITIES CORP.
By:
/s/
▇.
▇▇▇▇
Name:
▇. ▇▇▇▇
Title:
Vice President
ASSIGNOR:
▇▇▇▇▇▇▇
SACHS MORTGAGE COMPANY
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Funding
Corp.,
its General Partner
By:
/s/
▇▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Managing Director
SERVICER:
▇▇▇▇▇
FARGO BANK, N.A.
By:
/s/
▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Vice President
EXHIBIT
1
Mortgage
Loan Schedule
[To
be
retained in a separate closing binder entitled “GSR 2007-1F Mortgage Loan
Schedules” at the Washington D.C. Offices of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP]
Ex.
1
EXHIBIT
2
Agreements
Ex.
2
EXHIBIT
3
Section
S of the Trade Confirmation
S. Early
Payment Default:
In
the
event that the first scheduled payment of principal and interest (or interest
in
the case of an interest only loan) to be made by the mortgagor on the first
due
date after the Closing Date, in addition to any scheduled payments due prior
to
the Closing Date, with respect to any Mortgage Loan is not paid on or prior
to
such due date, the Seller shall repurchase such Mortgage Loan within thirty
(30)
days of the Purchaser’s request at a price equal to the Repurchase Price. The
Purchaser shall request any repurchase pursuant to this paragraph on or before
the thirtieth (30th)
day
from the date that the Purchaser receives notice of the related early payment
default (which notice may include receipt of a monthly remittance advice
reflecting such early payment default). The
provisions set forth in this paragraph shall survive the related Closing
Date
and shall not merge with any of the closing documents and shall be enforced
by
the Purchaser independently of this or any other agreement.
Ex.
3