ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GOLDMAN SACHS MORTGAGE COMPANY, as Assignor GS MORTGAGE SECURITIES CORP., as Assignee and GMAC MORTGAGE, LLC, as Servicer Dated as of June 1, 2007
EXECUTION
among
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY,
as
Assignor
GS
MORTGAGE SECURITIES CORP.,
as
Assignee
and
GMAC
MORTGAGE, LLC,
as
Servicer
Dated
as of
June
1, 2007
THIS
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT made as of the 1st
day of
June 2007 (this “Assignment Agreement”), among GMAC MORTGAGE, LLC, as servicer
(the “Servicer”), GS MORTGAGE SECURITIES CORP., as assignee (the “Assignee”),
and ▇▇▇▇▇▇▇ SACHS MORTGAGE COMPANY, as assignor (the “Assignor”).
WHEREAS,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company (“GSMC”) and the Servicer have entered into
(i)
the
Flow Sale and Servicing Agreement dated as of ▇▇▇▇▇ ▇, ▇▇▇▇, (▇▇) the related
Trade Confirmation dated as of April 22, 2005 and (iii) the related
Acknowledgement and Conveyance Agreement dated as of May 31, 2005, pursuant
to
which the Servicer sold to GSMC, on a servicing retained basis, certain mortgage
loans listed on the mortgage loan schedule attached hereto as Exhibit
1
(the
“Mortgage Loans”);
WHEREAS,
GSMC and the Servicer have entered into the Amended and Restated Sale and
Servicing Agreement dated as of March 1, 2006 (the “Sale and Servicing
Agreement”);
WHEREAS;
the Assignor, the Assignee and the Servicer have agreed that the provisions
of
the Sale and Servicing Agreement will apply to all of the Mortgage
Loans;
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 (the
“Trustee”) and as a custodian, Deutsche Bank National Trust Company, as a
custodian (the “Custodian”), and ▇▇▇▇▇ Fargo Bank, N.A., as securities
administrator and master servicer (in such capacity, the “Master Servicer”), the
Assignee will transfer the Mortgage Loans to the Trustee on behalf of the
Trust,
together with the Assignee’s rights in the Sale and Servicing Agreement;
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 Mortgage Loans, the Sale and Servicing
Agreement and the Trade Confirmation, to the extent relating to the Mortgage
Loans, with the exception of its right to indemnification from the Servicer
under section 8.01 of the Sale and Servicing Agreement for liabilities the
Assignor may incur relating to information provided to the Assignor by the
Servicer in connection with any Pass-Through Transfer or securitization of
the
Mortgage Loans. The Assignee hereby assumes all of the Assignor’s obligations
under the Sale and Servicing Agreement 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 Sale and Servicing
Agreement and the Trade Confirmation from and after the date hereof, to the
extent relating to the Mortgage Loans. Notwithstanding the foregoing, it
is
understood that the Assignor is not released from liability for any breaches
of
any representations and warranties made in Sections 3.01 or 3.02 of the Sale
and
the Servicing Agreement, or for any obligation (if any such obligation exists
under the Sale and Servicing Agreement) to indemnify the Servicer for any
acts
or omissions of the Assignor that occurred prior to the date hereof, and
the
Assignee is not undertaking any such liability hereunder.
(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 Sale and Servicing
Agreement.
(c) The
Assignor, the Assignee and the Servicer agree that the provisions of the
Sale
and Servicing Agreement will apply to the Assigned Mortgage Loans. The
Servicer and the Assignor shall have the right to amend, modify or terminate
the
Sale and 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.
(d) 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 Trade
Confirmation.
2. Accuracy
of the Sale and 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 Sale and Servicing Agreement, (ii)
the
Sale and Servicing Agreement is in full force and effect as of the date hereof,
(iii) other than as specified in the Assignment Assumption and Recognition
Agreement dated as of June
1,
2007,
among
the Assignee, the Trustee, the Servicer and the Master Servicer, executed
contemporaneously herewith, the Sale and Servicing Agreement has not been
amended or modified in any respect and (iv) no notice of termination has
been
given to the Servicer under the Sale and Servicing Agreement. The Servicer,
in
its capacity as seller under the Sale and Servicing Agreement, further
represents and warrants that the representations and warranties contained
in
Section 3.01 of the Sale and Servicing Agreement are true and correct on
and as
of June
29,
2007.
3. Recognition
of Purchaser.
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 service the Mortgage Loans for
the
benefit of the Assignee pursuant to the Sale and Servicing Agreement, the
terms
of which are incorporated herein by reference. It is the intention of the
Assignor, Servicer and Assignee that the Sale and Servicing Agreement shall
be
binding upon and inure to the benefit of the Servicer and the Assignee and
their
successors and assigns.
Notwithstanding
any provision of the Trade Confirmation to the contrary, in the event any
Mortgage Loan is repurchased by the Servicer
pursuant
to any early payment default or first payment default provisions of the Trade
Confirmations, the “Repurchase Price” payable to the Assignee shall be an amount
equal to the sum of: (a) the outstanding principal balance of such Mortgage
Loan
as of the date of such repurchase, (b) accrued interest on such outstanding
principal balance at the applicable Mortgage Interest Rate from the date
interest was last paid through the last day of the month in which such
repurchase takes place and (c) any reasonable costs and expenses incurred
by the
Trustee, including without limitation costs and expenses incurred in the
enforcement of the Servicer’s
repurchase
obligation under the Trade Confirmations. It is hereby understood that the
right
to any excess over such amount set forth in the definition of “Repurchase Price”
set forth in the Trade Confirmation is not being sold or assigned hereunder
and
is being retained by the Assignor.
2
4. Representations
and Warranties.
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 statements or representations
of the Assignor or the Servicer other than those contained in the Sale and
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 Sale and Servicing Agreement and 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).
5. 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 limited
partnership in good standing under the laws of the State of New York with
full
power and authority (corporate and other) to enter into and perform its
obligations under the Sale and Servicing Agreement 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 thereby 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.
3
(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 therein contemplated, nor
compliance by the Assignor with the provisions thereof, 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 the Trade Confirmation 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) 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) 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).
4
(j) With
respect to the Sale
and
Servicing Agreement,
nothing
has occurred or failed to occur from and after the closing date set forth
in the
Sale and Servicing 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 and 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 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 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 the Assignor shall be deemed not to have
made
the representations and warranties in this Section 5 with respect to, and
to the
extent of, representations and warranties made, as to the matters covered
in
this Section 5, by the Servicer in the Sale and Servicing Agreement (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 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. Notwithstanding the foregoing, however,
if such
breach is a Qualification Defect, such cure or repurchase must take place
within
75 days of the Defect Discovery Date.
In
the
event the Servicer has breached a representation or warranty under the
Sale
and
Servicing Agreement
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 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
Sale
and
Servicing Agreement)
or purchase, or substitute for the Mortgage Loan, the Trustee 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
Sale
and
Servicing Agreement
with respect to such Mortgage Loan.
5
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 Sale
and
Servicing Agreement
shall remain in full force and effect in accordance with its 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
Sale
and
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: (i) in the case of the Servicer,
GMAC
Mortgage, LLC, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Chief Financial Officer, Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇, or such address
as may
hereafter be furnished by the Servicer; (ii) in the case of the Assignee,
GS
Mortgage Securities Corp., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇▇ House, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ or such other address as may
hereafter be furnished by the Assignee and (iii) in the case of the Assignor,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇,
▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇, Telephone: (▇▇▇) ▇▇▇-▇▇▇▇,
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company,
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇, or such other address as may hereafter be furnished by the
Assignor.
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
same
meaning as in the Sale
and
Servicing Agreement.
6
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:
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY
By:
▇▇▇▇▇▇▇ Sachs Real Estate Funding
Corp.,
its General Partner
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇
▇.
▇▇▇▇▇
Title: Managing
Director
SERVICER:
GMAC
MORTGAGE, LLC
By: /s/
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇
Title: Vice
President
EXHIBIT
1
GMAC
Mortgage Loan Schedule
EXHIBIT
2
Sale
and Servicing Agreement