ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GOLDMAN SACHS MORTGAGE COMPANY, as the Assignor GS MORTGAGE SECURITIES CORP., as the Assignee and NATIONAL CITY MORTGAGE CO., as the Servicer Dated as of December 1, 2007
EXECUTION
among
XXXXXXX
XXXXX MORTGAGE COMPANY,
as
the Assignor
GS
MORTGAGE SECURITIES CORP.,
as
the Assignee
and
NATIONAL
CITY MORTGAGE CO.,
as
the Servicer
Dated
as of
December
1, 2007
This
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment Agreement”)
made this 1st day of December 2007, is among National City Mortgage Co.,
an Ohio
corporation, as seller and servicer (“National City” or the “Servicer”), GS
Mortgage Securities Corp., a Delaware corporation, as assignee (the “Assignee”),
and Xxxxxxx Sachs Mortgage Company, a New York limited partnership, as assignor
(“GSMC” or the “Assignor”).
WHEREAS,
National City sold to the Assignor, on a servicing retained basis, certain
mortgage loans pursuant to (i) the Third Amended and Restated Flow Seller’s
Warranties and Servicing Agreement dated as of September 1, 2007 as further
amended, modified and supplemented from time to time between GSMC and National
City (the “Flow SWSA”), (ii) the related Warranty Bills of Sale, dated September
19, 2007, September 24, 2007 and September 25, 2007 (the “Warranty Bills of
Sale”) and (iii) the related Trade Confirmations dated July 18, 2007 and August
1, 2007 (the “Trade Confirmations”), each by and between GSMC, as purchaser, and
National City, as seller and servicer;
WHEREAS,
the Assignee has agreed on certain terms and conditions to purchase from
the
Assignor certain of the mortgage loans (the “Mortgage Loans”), which Mortgage
Loans are subject to the provisions of the Flow SWSA, the Warranty Bills
of Sale
and the Trade Confirmations and are listed on the mortgage loan schedule
attached as Exhibit 1 hereto (the “Mortgage Loan Schedule”);
WHEREAS,
pursuant to a Master Servicing and Trust Agreement, dated as of December
1, 2007
(the “Trust Agreement”), among
the
Assignee, as depositor, U.S. Bank National Association, as trustee (the
“Trustee”), the custodians named therein and Xxxxx 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,
together with the Assignee’s rights in the Flow SWSA and the Trade Confirmations
to the extent relating to the Mortgage Loans;
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 Flow SWSA, and the Trade Confirmations, to
the
extent relating to the Mortgage Loans (other than the rights of the Assignor
to
indemnification thereunder and any rights with respect to early payment defaults
under the Trade Confirmations), and the Assignee hereby assumes all of the
Assignor’s obligations under the Flow SWSA and the Trade Confirmations, 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 Flow SWSA 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 Flow SWSA, and the Assignee is not undertaking
any
such liability hereunder. The Assignor specifically reserves and does not
assign
to the Assignee hereunder any and all right, title and interest in, to and
under
any
early
payment default provisions of the Trade Confirmations.
(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 Flow SWSA or the Trade
Confirmations.
(c) The
Servicer and the Assignor shall have the right to amend, modify or terminate
each of the Flow SWSA and the Trade Confirmations 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
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 Flow SWSA, (ii) the Flow SWSA,
each of the Warranty Bills of Sale and each Trade Confirmation are in full
force
and effect as of the date hereof, (iii) none of the Flow SWSA or any Warranty
Xxxx of Sale or Trade Confirmation has been amended or modified in any respect
and (iv) no notice of termination has been given to the Servicer under the
Flow
SWSA or the Trade Confirmations. The Servicer further represents and warrants
that the representations and warranties contained in Section 3.1 of the Flow
SWSA are true and correct on and as of December 28, 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 related Flow SWSA, the terms of which
are incorporated herein by reference. It is the intention of the Assignor,
the
Servicer and the Assignee that the Flow SWSA shall be binding upon and inure
to
the benefit of the Servicer and the Assignee and their successors and assigns.
The Assignee shall have all the rights and remedies available to the Assignor
(except such rights as are specifically reserved by the Assignor hereunder),
insofar as they relate to the Mortgage Loans, under the Flow SWSA and the
Trade
Confirmations, and shall be entitled to enforce all the obligations of the
Servicer thereunder insofar as they relate to the Mortgage Loans.
4. Representations
and Warranties.
2
The
Assignee hereby represents and warrants to the Assignor as follows:
(a) 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 Flow SWSA,
the
Trade Confirmations or this Assignment Agreement.
(b) 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 Flow SWSA.
(c) 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 Flow SWSA, the Trade Confirmations 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 thereof.
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 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) With
respect to each Mortgage Loan, the representations and warranties contained
in
Section 3.2 of the Flow SWSA, to the extent they relate to matters arising
on or
after the related Closing Date (as defined in the Flow SWSA), are true and
correct as of the date of this Assignment Agreement. For purposes of making
the
representations and warranties contemplated in this paragraph, each reference
in
Section 3.2 of the Flow SWSA to (A) the “Cut-off Date” shall be deemed to be a
reference to December 1, 2007, (B) the “Mortgage Loan Schedule” and shall be
deemed to be a reference to Exhibit 1 hereto and (C) the “Closing Date” shall be
deemed to be a reference to December 28, 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.
4
(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 Glossary) 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 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 (i) a “high cost” loan under the Home Ownership and
Equity Protection Act of 1994, (ii) 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 (iii) 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.
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 below 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 Flow SWSA (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.
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 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. Notwithstanding the foregoing, however,
if
such breach is a Qualification Defect, such cure or repurchase must take
place
within seventy-five (75) days of the date of discovery of such Qualification
Defect.
In
the event the Servicer has breached a representation or warranty under the
Flow
SWSA 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 sixty (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 Flow SWSA) or purchase, or substitute for the Mortgage Loan, the
Assignee 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 related Flow SWSA with respect to such Mortgage
Loan.
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 Mortgage File
and
shall assign to the Assignor all of the Assignee’s rights under the Flow SWSA
and the related Trade Confirmation, but only insofar as the Flow SWSA or
the
related Trade Confirmation 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 Flow SWSA shall remain in full force and effect
in
accordance with its terms.
6
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
Flow SWSA 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,
National
City Mortgage Co., 0000 Xxxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000,
Attention:
Xxxx
Xxxxx, Deal Manager,
Telecopy: (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, Telecopier No.: (000) 000-0000,
or such other address as may hereafter be furnished by the Assignee, and
(iii)
in the case of the Assignor, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxx Xxxxxxxx, Telecopier: (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 has the
same
meaning as in the Flow SWSA.
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.
[Signature
Page to Follow]
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/
Xxxx X. Finck__________________
Name:
Xxxx X. Xxxxx
Title:
Managing Director
ASSIGNOR:
XXXXXXX
SACHS MORTGAGE COMPANY
By: Xxxxxxx
Xxxxx Real Estate Funding
Corp.,
its General Partner
By:
/s/
Xxxx X. Finck__________________
Name:
Xxxx X. Xxxxx
Title:
Managing Director
SERVICER:
NATIONAL
CITY MORTGAGE CO.
By:/s/
Xxxx Xxxx Criswell______________
Name:
Xxxx Xxxx Xxxxxxxx
Title:
Vice President
EXHIBIT
1
Mortgage
Loan Schedule
[To
be
retained in a separate closing binder entitled “GSR 2007-5F Mortgage Loan
Schedules” at the Washington D.C. Offices of XxXxx Xxxxxx LLP]
EXHIBIT
2
Flow
SWSA
