ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
THIS
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this 1st day of February,
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”), and is
acknowledged by SunTrust Bank, a Georgia banking corporation.
(a) The
Assignor hereby assigns to the Assignee all of its right, title and interest
in
and to the Mortgage Loans, the Servicing Agreement, to the extent relating
to
the Mortgage Loans (other than the rights of the Assignor to indemnification
thereunder) and the Custodial Agreement, to the extent relating to the Mortgage
Loans, and the Assignee hereby assumes all of the Assignor’s obligations under
the Servicing Agreement and the Custodial Agreement, to the extent relating
to
the Mortgage Loans from and after the date hereof, and the Servicer and the
Custodian hereby acknowledge such assignment and assumption and hereby each
agrees to the release of the Assignor from any obligations under the Servicing
Agreement and the Custodial Agreement, respectively, 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 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 Servicing Agreement
and the
applicable date of each Commitment Letter.
(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. The Custodian and the Assignor shall have the right to amend,
modify or terminate the Custodial 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 hereby assigns to the Assignee, any rights of the Assignor with
respect
to early payment defaults or first payment defaults in 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
Trustee and the Master Servicer (acting on behalf of the Trust Fund) 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 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.
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 and the Commitment Letters are in full force and effect as of the
date
hereof, (iii) neither the Servicing Agreement nor the Commitment Letters
have
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 Servicing
Agreement or the Commitment Letters.
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.
2
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 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 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.
3
(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 3.2 of the Servicing Agreement, to the extent they relate to matters
arising on or after the related Closing Date (as defined in the Sale Agreement),
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 3.2 of the Servicing Agreement to (i)
the
“Cut-off Date” shall be deemed to be a reference to February 1, 2007, (ii) the
“Mortgage Loan Schedule” shall be deemed to be a reference to Exhibit
1
hereto and (iii) the “Closing Date” shall be deemed to be a reference to
February 23, 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.
(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 February 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.
4
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 Sale Agreement)
to
February 23, 2007, that would cause any of the representations and warranties
relating to the applicable Mortgage Loans set forth in 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
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, 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).
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.
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 Fund. 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.
Except
as
contemplated hereby, the Servicing Agreement and the Custodial Agreement
shall
each remain in full force and effect in accordance with their 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
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.
6
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: Xxxxxxx Xxxxxx-Xxxxxxx, Facsimile: (000) 000-0000, or such address
as
may hereafter be furnished by the Servicer; (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
Xxxxx 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.
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 FOLLOWS]
7
ASSIGNEE:
GS
MORTGAGE SECURITIES CORP.
By: /s/
X.
Xxxx
Name: X.
Xxxx
Title: Vice
President
ASSIGNOR:
XXXXXXX
XXXXX 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
Acknowledged
and agreed to by:
SUNTRUST
BANK
By: /s/
Xxxx
Xxxxxx
Name: Xxxx
Xxxxxx
Title: First
Vice
President
EXHIBIT
1
MORTGAGE
LOAN SCHEDULE
[To
be
retained in a separate closing binder entitled “STARM 2007-1 Mortgage Loan
Schedules” at the
Washington
D.C. Offices of XxXxx Xxxxxx LLP]
EXHIBIT
2
SERVICING
AGREEMENT
EXHIBIT
3
CUSTODIAL
AGREEMENT