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 January 1, 2007
EXECUTION
among
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY,
as
Assignor
GS
MORTGAGE SECURITIES CORP.,
as
Assignee
and
▇▇▇▇▇
FARGO BANK, N.A.
as
Servicer
Dated
as of
January
1, 2007
This
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment
Agreement”)
made
this 1st
day of
January, 2007, is among ▇▇▇▇▇ Fargo Bank, N.A. (“▇▇▇▇▇
Fargo”),
as
servicer (the “Servicer”),
GS
Mortgage Securities Corp., as assignee (the “Assignee”)
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, as assignor (the “Assignor”).
WHEREAS,
the Assignor and the Servicer have entered into the Amended and Restated
Master
Seller’s Warranties and Servicing Agreement dated as of March 1, 2006, as
modified by the Assignment and Conveyance Agreement (6601-6602) dated September
12, 2006 (the “Servicing
Agreement”),
and
the Second Amended and Restated Master Seller’s Warranties and Servicing
Agreement dated as of November 1, 2005, as modified by the Assignment and
Conveyance Agreement (2006-W74) dated August 30, 2006, pursuant to which
the
Servicer sold certain mortgage loans, including the Mortgage Loans (as defined
below);
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 January 1,
2007
(the “Trust Agreement”), among the Assignee, as depositor, Deutsche Bank
National Trust Company, as trustee (the “Trustee”), ▇▇▇▇▇ Fargo Bank, N.A.
(“▇▇▇▇▇ Fargo”), as securities administrator and master servicer (the “Master
Servicer”), and each of ▇▇▇▇▇ Fargo Bank, N.A. (in such capacity, the “WFB
Custodian”), Deutsche Bank National Trust Company, U.S. Bank National
Association and The Bank of New York, as custodians, 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 to indemnification thereunder); and
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.
1.1. 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 Servicing
Agreement, to the extent relating to the Mortgage Loans (other than the rights
of the Assignor to indemnification thereunder), and the Assignee hereby assumes
all of the Assignor’s obligations under the Servicing Agreement, to the extent
relating to the Mortgage Loans, from and after January 31, 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 January 31, 2007, to the extent relating to the Mortgage
Loans.
1
(b) The
Assignor represents and warrants to the Assignee that the Assignor has not
taken
any action which would serve to impair or encumber the Assignor’s ownership
interest in the Mortgage Loans since the date of the Servicing
Agreement.
(c) The
Servicer and the Assignor shall have the right to amend, modify or terminate
the
Servicing Agreement 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 further amended or modified in any respect and (iv)
no
notice of termination has been given to the Servicer under the Servicing
Agreement. The Servicer, in its capacity as seller and/or servicer under
the
Servicing Agreement, further represents and warrants that the representations
and warranties contained in Section 3.01 of the Servicing Agreement are true
and
correct as of January 31, 2007.
3. Recognition
of Assignee.
From
and after the date hereof, the Servicer shall note the transfer of the Mortgage
Loans to the Assignee in its books and records, shall recognize the Assignee
as
the owner of the Mortgage Loans and, notwithstanding anything herein or in
the
Servicing Agreement to the contrary, shall service all of the Mortgage Loans
for
the benefit of the Assignee pursuant to the Servicing Agreement, 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, 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.
4. 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 Servicing Agreement 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 Servicing Agreement.
(c) Enforceability.
The Assignee hereto represents and warrants that this Assignment Agreement
has
been duly authorized, executed and delivered by it and (assuming due
authorization, execution and delivery thereof by each of the other parties
hereto) constitutes its legal, valid and binding obligation, enforceable
in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization or other similar laws affecting the
enforcement of creditors’ rights generally and by general equitable principles
(regardless of whether such enforcement is considered in a proceeding in
equity
or at law).
2
5. 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
Servicing Agreement and this Assignment Agreement.
(b) Enforceability.
This
Assignment Agreement has been duly executed and delivered by the Assignor,
and,
assuming due authorization, execution and delivery by each of the other parties
hereto, constitutes a legal, valid, and binding agreement of the Assignor,
enforceable against it in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium, or other similar laws affecting
creditors’ rights generally and to general principles of equity regardless of
whether enforcement is sought in a proceeding in equity or at law.
(c) No
Consent.
The
execution, delivery and performance by the Assignor of this Assignment Agreement
and the consummation of the transactions contemplated 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.
3
(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.
(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 laws.
(j) 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 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
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 Servicing Agreement, nothing has occurred or failed
to
occur from and after the closing date set forth in the Servicing Agreement
to
January 31, 2007, that would cause any of the representations and warranties
relating to the Mortgage Loans set forth in Section 3.02 of the Servicing
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 5 shall survive delivery of the respective Mortgage Loan Documents
to
the WFB 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 6 to repurchase a Mortgage Loan constitute the sole
remedies available to the Assignee and its assigns on their behalf respecting
a
breach of the representations and warranties contained in this Section 5.
It is
further understood and agreed that, except as specifically set forth in this
Section 5, the Assignor shall be deemed not to have made the representations
and
warranties in Section 5(k) with respect to, and to the extent of,
representations and warranties made, as to the matters covered in Section
5(k),
by the Servicer in the Servicing Agreement (or any officer’s certificate
delivered pursuant thereto).
4
It
is
understood and agreed that the Assignor has made no representations or
warranties to the Assignee other than those contained in this Section 5,
and no
other affiliate of the Assignor has made any representations or warranties
of
any kind to the Assignee.
6. Repurchase
of Mortgage Loans.
Upon
discovery or notice of any breach by the Assignor of any representation,
warranty or covenant under this Assignment Agreement that materially and
adversely affects the value of any Mortgage Loan or the interest of the Assignee
therein (it being understood that any such defect or breach shall be deemed
to
have materially and adversely affected the value of the related Mortgage
Loan or
the interest of the Assignee therein if the Assignee incurs a loss as a result
of such defect or breach), the Assignee promptly shall request that the Assignor
cure such breach and, if the Assignor does not cure such breach in all material
respects within 60 days from the date on which it is notified of the breach,
the
Assignee may enforce the Assignor’s obligation hereunder to purchase such
Mortgage Loan from the Assignee 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
Servicing Agreement, but only insofar as the Servicing Agreement relates
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.
7. Continuing
Effect.
Except
as contemplated hereby, the Servicing Agreement shall remain in full force
and
effect in accordance with its respective terms.
8. 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.
5
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.
9. Notices.
Any
notices or other communications permitted or required hereunder or under
the
Servicing Agreement shall be in writing and shall be deemed conclusively
to have
been given if personally delivered at or mailed by registered mail, postage
prepaid, and return receipt requested or transmitted by telex, telegraph
or
telecopier and confirmed by a similar mailed writing, to:
(b) 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;
(c) in
the
case of the Assignee,
GS
Mortgage Securities Corp.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇
House
Tel.: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
6
or
such
other address as may hereafter be furnished by the Assignee, and
(d) in
the
case of the Assignor,
▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Company
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Tel.: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished by the Assignor.
(e) In
the
case of the Master Servicer,
▇▇▇▇▇
Fargo Bank, N.A.
▇.▇.
▇▇▇
▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Corporate Trust Group (GSR 2007-AR1)
(or
in
the case of overnight deliveries,
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ 21045)
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished by the Master Servicer.
10. 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.
11. Definitions.
Any
capitalized term used but not defined in this Assignment Agreement shall
have
the meaning assigned thereto in the Servicing Agreement.
[Signature
Page Follows]
7
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:
Vice President
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-AR1 Mortgage Loan
Schedules” at the Washington D.C. Offices of ▇▇▇▇▇ ▇▇▇▇▇▇ LLP]
Ex.
1
EXHIBIT
2
Servicing
Agreement
Ex.
2