ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
EXECUTION
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this 1st day of June
2007
(this “Assignment Agreement”),
is
among SunTrust Mortgage, Inc., a Virginia Corporation, as seller and servicer
(“SunTrust” or the “Servicer”), GS Mortgage Securities Corp., a Delaware
corporation (the “Assignee”), and Xxxxxxx Xxxxx Mortgage Company, a New York
limited partnership (the “Assignor”).
WHEREAS,
Bank of America, National Association (“Bank of America”) (as successor by
assignment to Banc of America Mortgage Capital Corporation (“BAMCC”) pursuant to
the Master Assignment, Assumption and Recognition Agreement dated as of
September 1, 2004 (the “Master AAR”)) and SunTrust have entered into a Flow Sale
and Servicing Agreement dated as of February 1, 2004, as amended by Amendment
No. 1 dated as of June 1, 2004, and as further amended by Amendment No. 2 dated
as of November 1, 2004 (as further modified by the Master AAR, the “Sale and
Servicing Agreement”), pursuant to which the SunTrust sold to Bank of America
certain mortgage loans (the “11/18/04 Mortgage Loans”) listed on the mortgage
loan schedule attached as an exhibit to the memorandum of sale dated November
18, 2004 (the “Memorandum of Sale”), between Bank of America and
SunTrust;
WHEREAS,
the Assignor has agreed on certain terms and conditions to purchase from Bank
of
America, and Bank of America has agreed to assign and convey to the Assignor,
certain of the 11/18/04 Mortgage Loans (the “4/27/05 Mortgage Loans”) pursuant
to an Assignment, Assumption and Recognition Agreement dated as of April 27,
2005, among Bank of America, SunTrust and the Assignor (the “Underlying
Assignment Agreement,” and together with the Sale and Servicing Agreement and
the Memorandum of Sale, the “BofA Agreements”), which 4/27/05 Mortgage Loans are
subject to the provisions of the Sale and Servicing Agreement and are listed
on
Exhibit 1 to the Underlying Assignment Agreement;
WHEREAS,
pursuant to the Underlying Assignment Agreement, Bank of America has assigned
all of its right, title and interest in, to and under the 4/27/05 Mortgage
Loans, the Sale and Servicing Agreement and the Memorandum of Sale, to the
extent related to the 4/27/05 Mortgage Loans, to the Assignor;
WHEREAS,
the Assignor and the Servicer have entered into (i) a certain Amended and
Restated Flow Seller’s Warranties and Servicing Agreement, dated as of December
1, 2005, as amended by Amendment No. 1, dated as of July 1, 2006, (the
“Servicing Agreement”) and (ii) the related Commitment Letters dated as of
August 7, 2006, April 11, 2007 and May 2, 2007 (each, a “Commitment Letter”),
pursuant to which the Assignor has acquired certain mortgage loans (the
“SunTrust Mortgage Loans”), which are subject to the provisions of the Servicing
Agreement;
WHEREAS,
the Assignee has agreed on certain terms and conditions to purchase from the
Assignor certain of the 4/27/05 Mortgage Loans and certain of the SunTrust
Mortgage Loans (the “Mortgage Loans”), which are listed on the mortgage loan
schedule attached as Exhibit
1
hereto
(the “SunTrust Mortgage Loans,” and together with the 4/27/05 Mortgage Loans,
“Mortgage Loans”);
WHEREAS,
the Servicer has agreed to continue to service the SunTrust Mortgage Loans
and
to service the 4/27/05 Mortgage Loans under the terms and conditions of the
Servicing Agreement; 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 (the
“Trustee”)
and as
a custodian, Deutsche Bank National Trust Company, as a custodian, and Xxxxx
Fargo Bank, N.A., as securities administrator (in such capacity, the “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 under the BofA Agreements and the
Servicing Agreement, and any rights it has with respect to early payment
defaults or first payment defaults provisions of the Underlying Assignment
Agreement and each Commitment Letter to the extent relating to the Mortgage
Loans (other than the rights of the Assignor to indemnification
thereunder);
Notwithstanding
anything to the contrary in the Servicing Agreement, in the event the Servicer
is obligated to make an advance pursuant to the Servicing Agreement, the
aggregate payment due shall be the minimum monthly payment due under the
mortgage note, net of servicing fees.
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 all of its right, title and interest
in
and to the Mortgage Loans, the BofA Agreements 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 BofA Agreements and the Servicing Agreement, 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 BofA
Agreements and the Servicing Agreement 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
the representations and warranties made in Section 4 of the Underlying
Assignment Agreement or Section 2.7 of the Servicing Agreement, 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 Underlying Assignment
Agreement, the Servicing Agreement or each Commitment Letter, as
applicable.
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(c) The
Servicer and the Assignor shall have the right to amend, modify or terminate
the
Servicing Agreement or the Commitment Letters 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 hereby assigns to the Assignee, any rights of the Assignor with respect
to early payment defaults or first payment defaults in the Underlying Assignment
Agreement and the Commitment Letters, but only to the extent such provision
relates to the Mortgage Loans. The foregoing shall constitute the Assignor’s
consent to the assignment of the Commitment Letters (to the extent required
by
the terms of each Commitment Letter).
(e) The
trust
(including the Trustee and the Master Servicer acting on the trust’s behalf)
shall have all the rights and remedies available to the Assignor, insofar as
they relate to the Mortgage Loans, under any early payment default or first
payment default provisions of the Underlying Assignment Agreement and each
Commitment Letter including, without limitation, the enforcement of the
repurchase requirements set forth therein, and shall be entitled to enforce
all
the obligations of the Servicer thereunder insofar as they relate to the
Mortgage Loans.
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 Underlying
Assignment Agreement, the Servicing Agreement and the Commitment Letters are
in
full force and effect as of the date hereof, (iii) none of the Underlying
Assignment Agreement, the Servicing Agreement or any of the Commitment Letters
has been amended or modified in any respect as to the Mortgage Loans, and (iv)
no notice of termination has been given to the Servicer under the Underlying
Assignment Agreement, the Servicing Agreement or the Commitment
Letters.
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 Servicing Agreement, the terms of which
are incorporated herein by reference. 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 as to the Mortgage Loans.
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4.Representations
and Warranties of the Assignee.
The
Assignee hereby represents and warrants to the Assignor as
follows:
(a) Decision
to Purchase.
The
Assignee 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 Underlying Assignment Agreement, the Servicing
Agreement, the Commitment Letters, or this Assignment Agreement.
(b) Authority.
The
Assignee is duly and legally authorized to enter into this Assignment Agreement
and to perform its obligations hereunder and under the Servicing Agreement.
(c) Enforceability.
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 Underlying Assignment Agreement, the Servicing Agreement,
the Commitment Letters, 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 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.
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(d) The
execution and delivery of this Assignment Agreement have been duly authorized
by
all necessary partnership 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) 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) 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 any Mortgage, and the Assignor has not released any Mortgaged Property
from the lien of the related 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) With
respect to the Mortgage Loans, the representations and warranties contained
in
Section 5(a) of Underlying Assignment Agreement and Section 3.2 of the Servicing
Agreement, as applicable, to the extent they relate to matters arising on or
after the related Closing Date (as defined in the Underlying Assignment
Agreement or the Sale Agreement, as applicable), are true and correct as of
the
date of this Assignment Agreement. For purposes of making the representations
and warranties contemplated in the foregoing sentence, each reference in Section
3.02 of the Sale and Servicing Agreement and Section 3.2 of the Servicing
Agreement to (i) the “Cut-off Date” shall be deemed to be a reference to June 1,
2007, (ii) the “Mortgage Loan Schedule” shall be deemed to be a reference to
Exhibit
1
hereto, as applicable, and (iii) the “Closing Date” shall be deemed to be a
reference to June 29, 2007.
(i) 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 Mortgage
Loans are “high-cost,” “high-cost home” or “covered” loans under any applicable
federal, state or local predatory or abusive lending law.
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(j) 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 June 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(j) 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.
(k) With
respect to the Servicing Agreement, nothing has occurred or failed to occur
from
and after the Closing Date (as such term is defined in the
Underlying Assignment Agreement
and Sale Agreement, as applicable) to June 29, 2007, that would cause any of
the
representations and warranties relating to the applicable Mortgage Loans set
forth in Section 5(a) of the
Underlying Assignment Agreement
and Section 3.2 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 Files to each
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, or to the
extent of, the representations and warranties made, as to the matters covered
in
this Section 5, by the Servicer in the Servicing Agreement (or any officer’s
certificate delivered pursuant thereto).
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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 discovery of such Qualification Defect.
In
the
event the Servicer has breached a representation or warranty under the Servicing
Agreement that is substantially identical to a representation or warranty
breached by the Assignor hereunder, the Assignee shall first proceed against
the
Servicer as to such breach. 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 Servicing Agreement) 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 Servicer to cure such
breach or repurchase such Mortgage Loan under the terms of the Servicing
Agreement with respect 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.
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7.
Continuing
Effect.
Except
as
contemplated hereby, the 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
SECTIONS 5-1401 AND 5-1402 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
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, SunTrust Mortgage, Inc., 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Vice
President - Investor Services,
Facsimile: (000) 000-0000, or such address as may hereafter be furnished by
the
Servicer,
with
copy to SunTrust Mortgage, Inc., 000 Xxxxxx Xxxxxx, XXX-0000, Xxxxxxxx, Xxxxxxxx
00000, Attention: Counsel - Capital Markets;
(ii) in
the case of the Assignee, GS Mortgage Securities Corp., 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxx Xxxx, Facsimile: (000) 000-0000,
or
such other address as may hereafter be furnished by the Assignee, and (iii)
in
the case of the Assignor, Xxxxxxx Sachs Mortgage Company, 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxxxxx, Facsimile: (000) 000-0000,
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 shall have
the same meaning as in the Servicing Agreement.
12. 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.
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[SIGNATURE
PAGE FOLLOWS]
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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/
Xxxxxxxx
Xxxx
Name: Xxxxxxxx
Xxxx
Title: Vice
President
ASSIGNOR:
XXXXXXX
SACHS MORTGAGE COMPANY
By: /s/
Xxxx X.
Xxxxx
Name: Xxxx
X.
Xxxxx
Title: Managing
Director
SERVICER:
SUNTRUST
MORTGAGE, INC.
By: /s/
Xxxxxxx
Xxxxxx-Xxxxxxx
Name: Xxxxxxx
Xxxxxx-Xxxxxxx
Title: Vice
President
EXHIBIT
1
MORTGAGE
LOAN SCHEDULE
[To
be
retained in a separate closing binder entitled “GSR 2007-4F Mortgage Loan
Schedules” at the Washington D.C. Offices of XxXxx Xxxxxx LLP]
EXHIBIT
2
SERVICING
AGREEMENT
