ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GOLDMAN SACHS MORTGAGE COMPANY, as Assignor, GS MORTGAGE SECURITIES CORP., as Assignee, and WASHINGTON MUTUAL BANK, as Seller and Servicer Dated as of April 1, 2007
EXECUTION
among
XXXXXXX
XXXXX MORTGAGE COMPANY,
as
Assignor,
GS
MORTGAGE SECURITIES CORP.,
as
Assignee,
and
WASHINGTON
MUTUAL BANK,
as
Seller and Servicer
Dated
as of
April
1, 2007
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment Agreement”) made this 1st
day of April 2007, among Washington Mutual Bank (formerly known as Washington
Mutual Bank, FA) (“Washington Mutual”), as seller and servicer (the “Seller” and
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 (the “Assignor”);
WHEREAS,
the Assignor and the Servicer have entered into the Servicing Agreement dated
as
of December 1, 2003, as amended by the First Amendment to Servicing Agreement
dated as of October 1, 2004, and as further amended by the Regulation AB
Amendment to Servicing Agreement dated as of April 1, 2006, (the “Servicing
Agreement”) and the Assignor and the Seller are parties to (i) the Mortgage Loan
Purchase and Sale Agreement dated as of December 1, 2003, as amended by the
First Amendment to Mortgage Loan Purchase Agreement dated as of October 1,
2004,
and as further amended by the Regulation AB Amendment to Mortgage Loan Purchase
and Sale Agreement dated as of April 1, 2006 (the “Purchase Agreement”) and (ii)
the Commitment Letter dated as of March 2, 2007 (the “Commitment Letter”);
WHEREAS,
the Assignee has agreed on certain terms and conditions to purchase from the
Assignor certain mortgage loans (the “Mortgage Loans”) serviced under the
Servicing Agreement which Mortgage Loans are subject to the provisions of the
Servicing Agreement 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 April 1, 2007
(together with the April 2007 Edition of the Standard Terms thereto, the “Trust
Agreement”), among GS Mortgage Securities Corp., as depositor, Xxxxx Fargo Bank,
N.A., as master servicer (the “Master Servicer”) and securities administrator
(the “Securities Administrator”), Deutsche
Bank National Trust Company, as a custodian, and
U.S.
Bank National Association, as trustee (the “Trustee”), the Assignee will
transfer the Mortgage Loans to the Trustee, together with the Assignee’s rights
in the Purchase Agreement and the 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 all of its right, title and interest
in
and to the Mortgage Loans, the Purchase Agreement 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 Purchase Agreement, the Servicing
Agreement, and the Commitment Letter to the extent relating to the Mortgage
Loans from and after the date hereof, and the Servicer and the Seller hereby
acknowledge such assignment and assumption and hereby agree to the release
of
the Assignor from any obligations under the Servicing Agreement and the Purchase
Agreement, respectively, from and after the date hereof, to the extent relating
to the Mortgage Loans. Notwithstanding the foregoing, any remittance to be
made
to the Assignee, as successor in interest to the Assignor under the Servicing
Agreement, during May of 2007 shall be made to the Assignor, and the Assignor
agrees to forthwith transfer any such remittance to the Assignee or its
designee.
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(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 or
the
Commitment Letter.
(c) The
Servicer and the Assignor shall have the right to amend, modify or terminate
the
Servicing Agreement and the Seller and the Assignor shall have the right to
amend, modify or terminate the Purchase Agreement or the Commitment Letter,
in
each case, 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 Letter,
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 Letter (to the extent required by the terms of the Commitment
Letter.)
(e) Notwithstanding
any provision of the Commitment Letter to the contrary, in the event any
Mortgage Loan is repurchased by the Seller pursuant to any early payment default
or first payment default provisions of the Commitment Letter, 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, (c) the amount
of any outstanding advances owed to the servicer (so long as Washington Mutual
is not the servicer), and (d) any reasonable costs and expenses incurred by
any
servicer (so long as Washington Mutual is not the servicer) or the Trustee,
including without limitation costs and expenses incurred in the enforcement
of
the Seller’s repurchase obligation under the Commitment Letter. 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 Commitment Letter is not being
sold or assigned hereunder and is being retained by the Assignor.
(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 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 Seller thereunder
insofar as they relate to the Mortgage Loans.
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2. Accuracy
of Servicing Agreement and the Purchase Agreement.
(a) 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 is in full force and effect
as
of the date hereof, (iii) the Servicing Agreement has not been amended or
modified in any respect except as set forth in Exhibit 2 and (iv) no notice
of
termination has been given to the Servicer under the Servicing
Agreement.
(b) The
Seller and the Assignor represent and warrant to the Assignee that (i) attached
hereto as Exhibit 3 is a true, accurate and complete copy of the Purchase
Agreement, (ii) the Purchase Agreement and the Commitment Letter are in full
force and effect as of the date hereof, and (iii) neither the Purchase Agreement
nor the Commitment Letter have been amended or modified in any respect except
by
an amendment attached hereto as part of Exhibit 3.
3. Recognition
of Assignee.
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. It is the intention of the Assignor, Seller and Assignee that the
Purchase Agreement shall be binding upon and inure to the benefit of the Seller
and the Assignee and their successors and assigns.
4. Representations
and Warranties of the Assignee.
The
Assignee hereby represents and warrants to the Assignor, the Seller and the
Servicer 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, the Seller or the Servicer other than those contained in the
Purchase Agreement, the 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 Purchase Agreement, the Servicing Agreement, and the Commitment
Letter.
(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).
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5. Representations
and Warranties of the Assignor.
The
Assignor hereby represents and warrants to the Assignee, the Seller and the
Servicer as follows:
(a) Organization.
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 (partnership and other) to enter into and perform its
obligations under the Purchase Agreement, the Servicing Agreement, the
Commitment Letter, and this Assignment Agreement.
(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 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.
(d) Authorization;
No Breach.
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) 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 (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.
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(f) Prior
Assignments; Pledges.
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.
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 3.1 of the Purchase Agreement, to the extent they relate to matters
arising on or after the related Closing Date (as defined in the Purchase
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 3.1 of the Purchase Agreement
to
(i) the “Cut-off Date” shall be deemed to be a reference to April 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 April 30,
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” (excluding home loans
defined as “covered home loans” pursuant to the New Jersey Home Ownership Act of
2002) 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 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), and no Mortgage Loan originated
on or after October 1, 2002 through March 6, 2003 is governed by the Georgia
Fair Lending Act.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 5 shall survive delivery of the respective Collateral Files to the
custodian and shall inure to the benefit of the Assignee, the Seller, the
Servicer and their respective assigns notwithstanding any restrictive or
qualified endorsement or assignment. Upon the discovery by the Assignor, the
Master Servicer 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.
6
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 date such defect is discovered.
In
the
event the Seller has breached a representation or warranty under the Purchase
Agreement that is substantially identical to a representation or warranty
breached by the Assignor hereunder, the Assignee shall first proceed against
such Seller. If such Seller does not cure such breach or
purchase the Mortgage Loan,
in
accordance with Section 3.3 of the Purchase Agreement, 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 formed pursuant the
Trust Agreement. In such event, the Assignor shall succeed to the rights of
the
Assignee to enforce the obligations of such Seller to cure such breach or
repurchase such Mortgage Loan under the terms of the Purchase Agreement with
respect to such Mortgage Loan.
Except
as
specifically set forth herein, the Assignee shall have no responsibility to
enforce any provision of the Purchase Agreement, to oversee compliance thereof,
or to take notice of any breach or default thereof.
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7. Indemnification
by Servicer.
The
Servicer shall indemnify and hold harmless the Assignee, its present and former
directors, officers, employees and assignees (each, an “Indemnified Party”)
against any and all third party claims, losses, penalties, damages, fines,
forfeitures, legal fees and related costs, judgments and any other costs, fees
and expenses that the Indemnified Party may sustain (for avoidance of doubt,
including those payable by an Indemnified Party to any third party, including
affiliates of such Indemnified Party) in any way related to the failure of
the
Servicer to service the Mortgage Loans in compliance with the terms of the
Servicing Agreement and this Assignment Agreement; provided, however, the
Servicer shall not be liable hereunder with respect to (i) any action or
inaction resulting from the written direction or consent of an Indemnified
Party, (ii) any action or inaction resulting from an Indemnified Party’s failure
to cause any Collateral File (or portion thereof) to be released to the Servicer
pursuant to Sections 2.18 or 4.2(c) of the Servicing Agreement, or (iii)
any action or inaction resulting from an Indemnified Party’s failure to comply
with Section 5.1(b) or Section 5.6 of the Servicing Agreement.
8. Continuing
Effect.
Except
as
contemplated hereby, the Servicing Agreement and the Purchase Agreement shall
remain in full force and effect in accordance with their respective
terms.
9. 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.
10. Notices.
Any
notices or other communications permitted or required hereunder or under the
Purchase Agreement or 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, Washington Mutual Bank, 0000 Xxxxxxxxxx Xxx,
Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Vice President, Investor Reporting,
Telephone: 000-000-0000, Facsimile: 000-000-0000, or such address as may
hereafter be furnished by the Servicer; (ii) in the case of the Seller,
Washington Mutual Bank, 0000 Xxxxxx Xxxxxx, XXX 1401, Xxxxxxx, Xxxxxxxxxx 00000,
Attention: General Counsel, Telephone: 000-000-0000, Facsimile: 000-000-0000,
or
such
address as may hereafter be furnished by the Seller; (iii) in the case of the
Assignee, GS Mortgage Securities Corp., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx Xxxxxxxxx, Telecopier No.: (000) 000-0000 or such
other
address as may hereafter be furnished by the Assignee, and (iv) in the case
of
the Assignor, Xxxxxxx Xxxxx Mortgage Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxx Xxxxx, Telecopier No.: (000) 000-0000 or such
other address as may hereafter be furnished by the Assignor. (v) in case of
the
Master Servicer, Xxxxx Fargo Bank, N.A., X.X. Xxx 00, Xxxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Group (GSR 2007-3F); in the case of overnight
deliveries, 0000 Xxx Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000.
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11. 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.
12. Definitions.
Any
capitalized term used but not defined in this Assignment Agreement has the
same
meaning as in the Purchase Agreement and the Servicing Agreement.
13. [Reserved.]
14. 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.
9
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
the
day and year first above written.
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ASSIGNEE:
GS
MORTGAGE SECURITIES CORP.
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| By: | /s/ X. Xxxx | |
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Name:
X. Xxxx
Title:
Vice President
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ASSIGNOR:
XXXXXXX
SACHS MORTGAGE COMPANY
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| By: | Xxxxxxx
Xxxxx Real Estate Funding
Corp.,
its General Partner
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| By: | /s/ Xxxx Xxxxxxx | |
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Name:
Xxxx Xxxxxxx
Title:
Vice President
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SELLER
and SERVICER:
WASHINGTON
MUTUAL BANK
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| By: | /s/ Xxxxxx Xxxx | |
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Name: Xxxxxx
Xxxx
Title: Vice
President
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EXHIBIT
1
(Mortgage
Loan Schedule)
[To
be
retained in a separate closing binder entitled “GSR 2007-3F Mortgage Loan
Schedules” at the Washington D.C. Offices of XxXxx Xxxxxx LLP]
EXHIBIT
2
(Servicing
Agreement)
EXHIBIT
3
(Purchase
Agreement)
