ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GS MORTGAGE SECURITIES CORP., as Assignor U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE, as Assignee and AVELO MORTGAGE, L.L.C. as Servicer and as acknowledged by WELLS FARGO BANK, N.A., as Master...
EXECUTION
among
GS
MORTGAGE SECURITIES CORP.,
as
Assignor
U.S.
BANK NATIONAL ASSOCIATION, AS TRUSTEE,
as
Assignee
and
AVELO
MORTGAGE, L.L.C.
as
Servicer
and
as acknowledged by
▇▇▇▇▇
FARGO BANK, N.A.,
as
Master Servicer
Dated
as of
December
1, 2007
This
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made as of this 1st
day of
December 2007 (this “Assignment
Agreement”),
is
among U.S. Bank National Association, not in its individual capacity, but
solely
as trustee on behalf of GSR Mortgage Loan Trust 2007-5F (the “Assignee”
or
the
“Trustee”),
Avelo
Mortgage, L.L.C. (“Avelo”
or
the
“Servicer”)
and GS
Mortgage Securities Corp., a Delaware corporation (the “Assignor”
or
the
“Depositor”),
and is
acknowledged by ▇▇▇▇▇ Fargo Bank, N.A., as master servicer (the “Master
Servicer”).
WHEREAS,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company (“GSMC”)
acquired certain of the mortgage loans identified on Schedule
I
hereto
(the “Conduit
Mortgage Loans”)
from
various originators on a servicing released basis through its residential
mortgage loan conduit program pursuant to (a) the Sellers Guide dated May
2006
(the “Sellers
Guide”),
(b)
the PPTL Agreements (as defined in the Conduit AAR) and (c) the Purchase
Agreements (as defined in the Conduit AAR) (such Purchase Agreements together
with the Sellers Guide and the PPTL Agreements, the “Conduit
Agreements”);
WHEREAS,
the Conduit Mortgage Loans are currently being serviced by Avelo pursuant
to a
Flow Servicing Agreement dated as of January 1, 2006 (the “Servicing
Agreement,”
and
together with the Conduit Agreements, the “Agreements”),
between GSMC and the Servicer;
WHEREAS,
GSMC, the Assignor and the Servicer have entered into the Assignment, Assumption
and Recognition Agreement dated as of December 1, 2007 (the “Conduit
AAR”),
and
GSMC and the Assignor have entered into a Representations and Warranties
Agreement dated as of December 28, 2007 (together with the Conduit AAR, the
“GSMC
Assignment Agreement”),
pursuant to which GSMC has sold to the Assignor the Conduit Mortgage Loans,
assigned its rights (other than the servicing rights related thereto and
other
rights specifically reserved therein) under the Conduit Mortgage Loans and
the
Agreements to the Assignor and made certain representations and warranties
to
the Assignor;
WHEREAS,
pursuant to a Master Servicing and Trust Agreement dated as of December 1,
2007
(the “Trust
Agreement”),
among
the Assignor, as depositor, the Assignee, as trustee, the Master Servicer,
as
securities administrator and master servicer, and the custodians named therein,
the Assignor will transfer the Conduit Mortgage Loans to the Trustee, together
with the Assignor’s rights under the Conduit Agreements, to the extent relating
to the Conduit Mortgage Loans (other than the servicing rights, the rights
of
the Assignor to indemnification thereunder and any rights with respect to
early
payment default, or first payment default, in the PPTL Agreements, which
rights
are being retained by GSMC);
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, as of the date hereof, all of its
right, title and interest in and to the Conduit Mortgage Loans, the GSMC
Assignment Agreement and the Agreements, to the extent relating to the Conduit
Mortgage Loans (other than the servicing rights and the rights of the Assignor
to indemnification thereunder and any rights with respect to early payment
defaults or first payment defaults in the PPTL Agreements, which rights are
being retained by GSMC), and the Assignee hereby assumes all of the Assignor’s
rights and obligations under the GSMC Assignment Agreement and the Agreements,
to the extent relating to the Conduit Mortgage Loans, from and after December
1,
2007.
(b) The
Assignor represents and warrants to the Assignee that the Assignor has not
taken
any action that would serve to impair or encumber the Assignor’s ownership
interest in the Conduit Mortgage Loans since the date of the related
MLPA.
(c) The
Assignor and the Servicer shall have the right to amend, modify or terminate
the
Agreements 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 Agreements.
The
Assignor represents and warrants to the Assignee that (i) attached hereto
as
Exhibit
1
are
true, accurate and complete copies of the Agreements, (ii) the Agreements
are in
full force and effect as of the date hereof, (iii) other than as provided
herein, the Agreements have not been amended or modified in any respect and
(iv)
no notice of termination has been given to the Servicer under the Servicing
Agreement.
3. Recognition
of Assignee.
From
and after the date hereof, the Servicer shall note the transfer of the Conduit
Mortgage Loans to the Trustee in its books and records, shall recognize the
Trustee as the owner of the Conduit Mortgage Loans and shall service the
Conduit
Mortgage Loans for the benefit of the Trustee pursuant to the Servicing
Agreement (as modified by the Conduit AAR) the terms of which are incorporated
herein by reference.
The
Servicer further acknowledges that, from and after the date hereof, it (and
any
of its successors under the Servicing Agreement) will be subject to the
supervision of the Master Servicer and that the Master Servicer, acting on
behalf of the Assignee 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 Servicing Agreement, to the Assignor under the GSMC Assignment Agreement,
and further assigned hereunder by the Assignor to the Assignee, on behalf
of the
Trust. Such rights will include, without limitation, the right to terminate
the
Servicer under the Servicing Agreement upon the occurrence of an event of
default thereunder, the right to receive all remittances required to be made
by
the Servicer under the Servicing Agreement, the right to receive all monthly
reports and other data required to be delivered by the Servicer under the
Servicing Agreement, indemnification rights and the right to exercise certain
rights of consent and approval relating to actions taken by the
Servicer.
4. Representations
and Warranties of the Assignee.
The
Assignee hereby represents and warrants to the Assignor as
follows:
2
(a) Decision
to Purchase.
The
Assignee is a sophisticated investor able to evaluate the risks and merits
of
the transactions contemplated hereby, and it has not relied in connection
therewith upon any statements 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.
(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).
5. Representations
and Warranties of the Assignor.
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 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 Agreements 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 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.
3
(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 (i) with respect to any of the transactions
contemplated by this Assignment Agreement or (ii) 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.
As of
December 28, 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
December 28, 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.
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 Conduit
Mortgage Loans are “high-cost,” “high-cost home” or “covered” loans under any
applicable federal, state or local predatory or abusive lending law.
(i) HOEPA.
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 LEVELS®
Glossary,
Appendix E, in effect on December
1,
2007) 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(i) 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 a 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.
4
(j) Bring
Down.
With
respect to the Sellers Guide, nothing has occurred or failed to occur from
and
after the closing date set forth in the related MLPA to December 28, 2007,
that
would cause any of the representations and warranties relating to the Conduit
Mortgage Loans set forth in Section II.B.2. of the Sellers Guide, as such
may be
amended by the related MLPA, 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 Custodians 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 below 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 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 5,
and no other affiliate of the Assignor has made any representations or
warranties of any kind to the Assignee.
6. Repurchase
of Conduit 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 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
seventy-five (75) days of discovery of such Qualification
Defect.
5
In
the
event the applicable originator has breached a representation or warranty
under
the applicable MLPA that is substantially identical to a representation or
warranty breached by the Assignor hereunder, the Assignee shall first proceed
against such originator as to such breach. If the applicable originator does
not
within 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 applicable MLPA) or
repurchase, or substitute for, the affected Mortgage Loan, the Trustee shall
be
entitled to enforce the obligations of the Assignor hereunder to cure such
breach or to repurchase such Mortgage Loan from the Trust. In such event,
the
Assignor shall succeed to the rights of the Assignee to enforce the obligations
of the applicable originator to cure such breach or repurchase such Mortgage
Loan under the terms of the applicable MLPA with respect to such Mortgage
Loan.
In
the
event of a repurchase of any Mortgage Loan by the Assignor, the Trustee shall
promptly deliver to the Assignor or its designee the related Mortgage File
and
shall assign to the Assignor all of the Assignee’s rights under the Agreements,
but only insofar as the Agreements 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.
7. Continuing
Effect.
Except
as contemplated hereby, the Agreements shall remain in full force and effect
in
accordance with their 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.
9. 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,
Avelo
Mortgage, L.L.C.
▇▇▇
▇.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇. ▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
or
such
address as may hereafter be furnished by the Servicer;
(b)
in
the
case of the Assignee,
U.S.
Bank
National Association
▇▇▇
▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
Structured Finance Department - GSR 2007-5F
6
or
such other address as
may hereafter be furnished by the Assignee; and
(c) in
the
case of the Assignor,
GS
Mortgage Securities Corp.,
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished by the Assignor.
(d) in
the
case of the Master Servicer,
▇▇▇▇▇
Fargo Bank, N.A.
▇.▇.
▇▇▇
▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Client
Manager GSR 2007-5F
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
(or
in
the case of overnight deliveries,
▇▇▇▇▇
Fargo Bank, N.A.
▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Client Manager GSR 2007-5F)
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 has the
meaning assigned thereto in the Agreements, the Conduit AAR or the Trust
Agreement, as applicable.
12. Trustee
Capacity.
It is
expressly understood and agreed by the parties hereto that insofar as this
Assignment Agreement is executed by the Trustee: (i) this Assignment Agreement
is executed and delivered by U.S. Bank National Association, not individually
or
personally but solely on behalf of the Trust, in the exercise of the powers
and
authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements by U.S. Bank National Association is made and
intended for the purpose of binding only the Trust, (iii) nothing herein
shall
be construed as creating any liability on the part of U.S. Bank National
Association, individually or personally, to perform any covenant either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto and such waiver shall bind any third
party making a claim by or through one of the parties hereto, and (iv) under
no
circumstances shall U.S. Bank National Association in its individual capacity
be
personally liable for the payment of any indebtedness or expenses undertaken
under this Assignment Agreement.
7
13. Third
Party Beneficiary.
The
Master Servicer shall be considered a Third-Party Beneficiary to this Assignment
Agreement entitled to all rights and benefits hereof as if it were a direct
party to this Assignment Agreement.
[SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
8
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
the
day and year first above written.
ASSIGNOR:
GS
MORTGAGE SECURITIES CORP.
By:
/s/
▇▇▇▇ ▇. ▇▇▇▇▇
Name:
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Managing Director
ASSIGNEE:
U.S.
BANK
NATIONAL ASSOCIATION, not in its individual
capacity
but solely as Trustee
By:
/s/
▇▇▇▇▇▇▇▇ ▇’▇▇▇▇▇
Name:
▇▇▇▇▇▇▇▇ ▇’▇▇▇▇▇
Title:
Vice President
SERVICER:
AVELO
MORTGAGE, L.L.C.
By:/s/
J.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Name:
J.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
President
Acknowledged
by:
MASTER
SERVICER:
▇▇▇▇▇
FARGO BANK, N.A.
By:
/s/
▇▇▇▇▇▇ ▇▇▇▇
Name:
▇▇▇▇▇▇ ▇▇▇▇
Title:
Vice President
SCHEDULE 1
Conduit
Mortgage Loan Schedule
I-1
EXHIBIT 1
Servicing
Agreement, Sellers Guide and applicable MLPAs