ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT between GS MORTGAGE SECURITIES CORP., as Assignor and DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, as Assignee and as acknowledged by WELLS FARGO BANK, N.A., as Master Servicer Dated as of October...
EXECUTION
between
GS
MORTGAGE SECURITIES CORP.,
as
Assignor
and
DEUTSCHE
BANK NATIONAL TRUST COMPANY, AS TRUSTEE,
as
Assignee
and
as acknowledged by
XXXXX
FARGO BANK, N.A.,
as
Master Servicer
Dated
as of
October
1, 2007
This
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made as of this 1st
day of
October 2007 (this “Assignment
Agreement”),
is
between Deutsche Bank National Trust Company, not in its individual capacity,
but solely as trustee on behalf of GSR Mortgage Loan Trust 2007-OA2 (the
“Assignee”
or
the
“Trustee”),
and
GS Mortgage Securities Corp., a Delaware corporation (the “Assignor”
or
the
“Depositor”),
and is
acknowledged by Xxxxx Fargo Bank, N.A., as master servicer (the “Master
Servicer”).
WHEREAS,
Xxxxxxx Xxxxx Mortgage Company (“GSMC”)
acquired certain 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 (i) the Sellers Guide dated May
2006 (the “Sellers
Guide”),
(ii) various Master Loan Purchase Agreements, Purchase Price and Terms
Letters or Trade Confirmations (each, a “PPTL
Agreement”)
and
various Master Loan Purchase Agreements (each, a “MLPA,”
and
collectively, together with the Sellers Guide and the PPTL Agreements, the
“Conduit
Agreements”),
each
between GSMC and the related seller;
WHEREAS,
the Conduit Mortgage Loans are currently being subserviced by Avelo Mortgage,
L.L.C. (the “Subservicer”)
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 Subservicer;
WHEREAS,
GSMC, the Assignor and the Subservicer have entered into the Assignment,
Assumption and Recognition Agreement dated as of October 1, 2007 (the
“GSMC AAR”),
and
GSMC and the Assignor have entered into a Representations and Warranties
Agreement dated as of October 29, 2007 (together with the GSMC AAR, the
“GSMC
Assignment Agreement”),
pursuant to which GSMC has sold to the Assignor the Conduit Mortgage Loans,
assigned its rights (absent the servicing rights related thereto) 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 October 1, 2007
(the “Trust
Agreement”),
among
the Assignor, as depositor, the Assignee, as trustee, Xxxxx Fargo Bank, N.A.,
as
securities administrator and master servicer (in its master servicing capacity,
the “Master Servicer”) and Deutsche Bank National Trust Company, as custodian
(the “Custodian”),
the
Assignor will transfer the Conduit Mortgage Loans to the Assignee, together
with
the Assignor’s rights under the Conduit 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
WHEREAS,
the Subservicer shall service the Conduit Mortgage Loans for the benefit of
the
Assignee pursuant to the Servicing Agreement (as modified by the GSMC AAR),
the
terms of which are incorporated herein by reference;
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 the Assignee hereby assumes all of the
Assignor’s rights and obligations under the Agreements, subject to the rights
and obligations of the Master Servicer set forth in Section 2(d) of the GSMC
AAR, to the extent relating to the Conduit Mortgage Loans, from and after
October 1, 2007;
provided,
however,
it is understood and agreed upon by the parties hereto, that the Assignee shall
not be liable for (i) any breach of any obligation or representation of the
Assignor pursuant to the GSMC Assignment Agreement or (ii) any breach of any
obligation, covenant, representation or warranty of the Assignor, or be
responsible for any indemnification amounts owed by the Assignor, pursuant
to
the Servicing Agreement arising prior to October 1, 2007. The Assignor shall
remain liable for all such liability arising prior to October 1, 2007 and for
its own actions and omissions apart from those assumed by the
Assignee.
(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 Subservicer 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.
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.
(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 PPTL Agreements,
if
applicable, but only to the extent such provision relates to the Conduit
Mortgage Loans. The foregoing shall constitute the Assignor’s consent to the
assignment of the PPTL Agreements (to the extent required by the terms of each
PPTL Agreement).
(e) Notwithstanding
any provision of the PPTL Agreements to the contrary, in the event any Conduit
Mortgage Loan is repurchased pursuant to any early payment default or first
payment default provisions of the PPTL Agreements, the “Repurchase Price”
payable to the Assignee shall be an amount equal to the sum of: (a) the
outstanding principal balance of such Conduit 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, (c)
the
amount of any outstanding advances owed to the servicer, and (d) any reasonable
costs and expenses incurred by any servicer or by the Trustee, including without
limitation costs and expenses incurred in the enforcement of the repurchase
obligation under the applicable PPTL Agreement. It is hereby understood that
the
right to any excess over such amount set forth in the definition of “Repurchase
Price” set forth in any PPTL Agreement is not being sold or assigned hereunder
and is being retained by GSMC.
2
(f) 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 Conduit Mortgage Loans, under any early payment default
or
first payment default provisions of the PPTL Agreements including, without
limitation, the enforcement of the repurchase requirements set forth therein,
and shall be entitled to enforce all obligations of thereunder insofar as they
relate to the Conduit Mortgage Loans unless otherwise stated in the Trust
Agreement.
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 Subservicer under the Servicing
Agreement.
3. [Reserved]
4. Representations
and Warranties of the Assignee.
The
Assignee hereby represents and warrants to the Assignor as follows:
(a) 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.
(b) 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.
3
(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.
(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
October 29, 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
October 29, 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
Conduit 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
(i) HOEPA.
No
Conduit 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 October 1, 2007) and no Conduit 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.
(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 October 29, 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 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 hereof to repurchase a Conduit 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.
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 Conduit 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
Conduit 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 Conduit 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.
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 Conduit Mortgage Loan, the Trustee
shall be entitled to enforce the obligations of the Assignor hereunder to cure
such breach or to repurchase such Conduit 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
Conduit Mortgage Loan under the terms of the applicable MLPA with respect to
such Conduit Mortgage Loan
In
the
event of a repurchase of any Conduit 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 Conduit 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.
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
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 Subservicer,
|
Avelo
Mortgage, L.L.C.
000
X.
Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
or
such
address as may hereafter be furnished by the Subservicer;
|
(b)
|
in
the case of the Assignee,
|
Deutsche
Bank National Trust Company
0000
Xxxx
Xx. Xxxxxx Xxxxx
Xxxxx
Xxx, Xxxxxxxxxx 00000
Attention:
GSR 2007-OA2
Phone:
(000) 000-0000
Fax:
(000) 000-0000
or
such
other address as may hereafter be furnished by the Assignee; and
|
(c)
|
in
the case of the Assignor,
|
GS
Mortgage Securities Corp.,
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxxxxx House
or
such
other address as may hereafter be furnished by the Assignor.
|
(d)
|
in
the case of the Master Servicer,
|
Xxxxx
Fargo Bank, N.A.
X.X.
Xxx
00
0
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client
Services Manager (GSR 2007-OA2)
(or
in the case of overnight deliveries,
Xxxxx
Fargo Bank, N.A.
0000
Xxx Xxxxxxxxx Xxxx
Xxxxxxxx,
Xxxxxxxx 00000
Attention:
Client Services Manager (GSR 2007-OA2))
Telephone:
(000) 000-0000
Facsimile:
(000) 000-0000
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 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 Deutsche Bank National Trust Company, not
individually or personally but solely as Assignee on behalf of the GSR Mortgage
Loan Trust 2007-OA2 (the “Trust”), in the exercise of the powers and authority
conferred and vested in it, (ii) each of the representations, undertakings
and
agreements by Deutsche Bank National Trust Company, is made and intended for
the
purpose of binding only the GSR Mortgage Loan Trust 2007-OA2, (iii) nothing
herein shall be construed as creating any liability on the part of Deutsche
Bank
National Trust Company, 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 Deutsche Bank National Trust Company be personally liable
for the payment of any indebtedness or expenses (including but not limited
to
any amounts to be paid under the Purchase and Servicing Agreements) of the
Trust, or be liable for the breach or failure of any obligation, representation,
warranty or covenant made or undertaken by the Trust under this Assignment
Agreement, the GSMC Assignment Agreement, the Agreements, the Trust Agreement
or
any related document.
13. Third-Party
Beneficiary.
The
Master Servicer shall be considered a Third-Party Beneficiary to this Assignment
entitled to all rights and benefits hereof as if it were a direct party to
this
Assignment, including, without limitation, the rights set forth in Section
2(d)
of the GSMC AAR.
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/
Xxxxxxxx Xxxx
Name:
Xxxxxxxx Xxxx
Title:
Vice President
ASSIGNEE:
DEUTSCHE
BANK NATIONAL TRUST
COMPANY,
not in its individual capacity
but
solely as Trustee
By:
/s/ Mei Nqhia
Name: Mei Nqhia
Title: Authorized Signer
Name: Mei Nqhia
Title: Authorized Signer
Acknowledged
by:
MASTER
SERVICER:
XXXXX
FARGO BANK, N.A.
By:
/s/ Xxxxxx Xxxx
Name:
Xxxxxx Xxxx
Title:
Vice President
SCHEDULE 1
Mortgage
Loan Schedule
[To
be
retained in a separate closing binder entitled “GSR 2007-OA2 Conduit Mortgage
Loan
Schedule”
at the offices of XxXxx Xxxxxx LLP]
I-1
EXHIBIT 1
Servicing
Agreement
