ASSIGNMENT AND ASSUMPTION AGREEMENT
EXECUTION
This
ASSIGNMENT AND ASSUMPTION AGREEMENT dated October 1, 2007 (this “Assignment
Agreement”), is among Xxxxxxx Xxxxx Mortgage Company, a New York limited
partnership (the “Assignor”), GS Mortgage Securities Corp., a Delaware
corporation (the “Assignee”) and Residential Funding Company, LLC, a Delaware
limited liability company (the “Company” or the “Servicer”).
WHEREAS,
the Company sold to the Assignor, on a servicing retained basis, certain
mortgage loans listed on the mortgage loan schedule attached as Schedule
A
hereto
(the “Mortgage Loans”) pursuant to the Standard Terms and Provisions of Sale and
Servicing Agreement dated as of September 29, 2005, amended by Amendment No.
1
dated as of June 26, 2006, Amendment No. 2 dated as of October 6, 2006,
Amendment No. 3 dated as of December 28, 2006 and Amendment No. 4 dated as
of
March 15, 2007 of which that certain Regulation AB Compliance Addendum forms
a
part, as supplemented by the Reference Agreements each dated April 27, 2007
(collectively, the “Servicing Agreement”), by and between the Company and the
Assignor;
WHEREAS,
the Assignee has agreed on certain terms and conditions to purchase from the
Assignor the Mortgage Loans, each of which Mortgage Loans is subject to the
provisions of the Servicing Agreement; and
WHEREAS,
pursuant to a Master Servicing and Trust Agreement dated as of October 1, 2007
(the “Trust Agreement”), among the Assignor, as depositor, Deutsche Bank
National Trust Company, as trustee (the “Trustee”), Xxxxx Fargo Bank, N.A.
(“Xxxxx Fargo”), as securities administrator and master servicer (the “Master
Servicer”) and Deutsche Bank National Trust Company, as custodian (the
“Custodian”), the Assignee will transfer the Mortgage Loans to the Trustee,
together with the Assignee’s rights in the Servicing Agreement related to the
Mortgage Loans;
For
and
in consideration of the sum of TEN DOLLARS ($10.00) and other valuable
consideration the receipt and sufficiency of which hereby are acknowledged,
and
of the mutual covenants herein contained, the parties hereto hereby agree as
follows:
1. Assignment
and Assumption.
a. With
respect to the Mortgage Loans, the Assignor hereby grants, transfers and assigns
to the Assignee all of the right, title and interest of the Assignor, as Owner,
in, to and under the Servicing Agreement (other than the rights of the Assignor
to indemnification thereunder) and the Mortgage Loans delivered thereunder
by
the Company to the Assignor. The foregoing shall constitute the Assignor’s
consent to the assignment of the Reference Agreements.
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 Mortgage Loans since the date of the Servicing
Agreement.
c. The
Servicer and the Assignor shall have the right to amend, modify or terminate
the
Servicing 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.
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.
2. Accuracy
of Agreement.
The Servicer and the Assignor represent and warrant to the Assignee that
(i) attached hereto as Exhibit
1
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)
other than as specified in the Assignment Assumption and Recognition Agreement
dated as of October 1, 2007, among the Assignee, the Trustee, the Servicer
and
the Master Servicer, executed contemporaneously herewith, the Servicing
Agreement has not been amended or modified in any respect and (iv) no notice
of
termination has been given to the Servicer under the Servicing
Agreement.
3. Representations
and Warranties of the Assignor.
The
Assignor warrants and represents to, and covenants with, the Assignee
that:
a. The
Assignor is the lawful owner of the Mortgage Loans with the full right to
transfer such Mortgage Loans, which transfer is made subject to the terms and
provisions of the Servicing Agreement but free from any other claims and
encumbrances;
b. The
Assignor has not received notice of, and has no knowledge of, any offsets,
counterclaims or other defenses available to the Company with respect to the
Servicing Agreement or the Mortgage Loans;
c. Unless
noted below, the Assignor has not waived or agreed to any waiver under, or
agreed to any amendment or other modification of, the Servicing Agreement or
the
Mortgage Loans, including without limitation the transfer of the servicing
obligations under the Servicing Agreement. The Assignor has no knowledge of,
and
has not received notice of, any waivers under or amendments or other
modifications of, or assignments of rights or obligations under, the Servicing
Agreement or the Mortgage Loans;
d. Neither
the Assignor nor anyone acting on its behalf has offered, transferred, pledged
sold or otherwise disposed of the Mortgage Loans or any interest in the Mortgage
Loans to, or solicited any offer to buy or accept a transfer, pledge or other
disposition of the Mortgage Loans or any interest in the Mortgage Loans from,
or
otherwise approached or negotiated with respect to the Mortgage Loans, any
interest in the Mortgage Loans with, any Person in any manner, or made any
general solicitation by means of general advertising or in any other manner,
or
taken any other action which would constitute a distribution of the Mortgage
Loans under the Securities Act of 1933 (the “Securities Act”) or which would
render the disposition of the Mortgage Loans a violation of Section 5 of the
Securities Act or require registration pursuant thereto;
e. 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 to enter into and perform its obligations under the
Servicing Agreement and this Assignment Agreement;
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f. 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;
g. 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;
h. 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;
i. 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;
j. 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;
k. 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;
l. With
respect to each Mortgage Loan, the representations and warranties contained
in
Section 2.04(b) of the Servicing Agreement, to the extent they relate to matters
arising on or after the related Closing Date (as defined in the Servicing
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 2.04(b) of the Servicing Agreement
to (i) the “Cut-off Date” shall be deemed to be a reference to October 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 October 29,
2007;
3
m. No
Mortgage Loan is classified as a “high cost” mortgage loan under Section 32 of
the Home Ownership and Equity Protection Act of 1994, as amended, and no
Mortgage Loan is considered a “high cost” mortgage 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). 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,
Appendix E, in effect on October
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;
n.
With
respect to any Mortgage Loan in Loan Group 1 that contains a provision
permitting imposition of a penalty upon a prepayment prior to maturity: (i)
the
Mortgage Loan provides some benefit to the borrower in exchange for accepting
such prepayment penalty; (ii) prior to the Mortgage Loan’s origination, the
borrower was offered the option of obtaining a mortgage loan that did not
require the payment of such a penalty; and (iii) such prepayment penalty shall
not be imposed in any instance where such Mortgage Loan is accelerated or paid
off in connection with the workout of a delinquent Mortgage or due to the
borrower’s default, notwithstanding that the terms of such Mortgage Loan or
state or federal law might permit the imposition of such penalty;
o. With
respect to each Mortgage Loan in Loan Group 1, the borrower was not encouraged
or required to select a mortgage loan product offered by the Mortgage Loan’s
originator which is a higher cost product designed for less creditworthy
borrowers, taking into account such facts as, without limitation, the Mortgage
Loan’s requirements and the borrower’s credit history, income,
assets and liabilities.
For a
borrower who seeks
financing through a
Mortgage Loan originator’s higher-priced subprime lending channel, the borrower
should be directed towards or offered the Mortgage Loan originator’s standard
mortgage line if the borrower is able to qualify for one of the standard
products;
p. The
methodology used in underwriting the extension of credit for each Mortgage
Loan
in Loan Group 1 did not rely solely on the extent of the borrower’s equity in
the collateral as the principal determining factor in approving such extension
of credit. The methodology employed related objective criteria such as the
borrower’s income, assets, and liabilities to the proposed mortgage payment and,
based on such methodology, the Mortgage Loan’s originator made a reasonable
determination that at the time of origination the borrower had the ability
to
make timely payments on the Mortgage Loan;
q. No
borrower of a Mortgage Loan in Loan Group 1 that is secured by the borrower’s
principal residence was charged points and fees in an amount greater than (a)
$1,000 or (b) 5% of the principal amount of such mortgage loan, whichever is
greater. For purposes of this representation, “points and fees” (x) include
origination, underwriting, broker and finder’s fees and charges that the lender
imposed as a condition of making the Mortgage Loan, whether they are paid to
the
lender or a third party; and (y) exclude
bona
fide discount points, fees paid for actual services rendered in connection
with
the origination of the mortgage (such as attorneys’ fees, notaries fees and fees
paid for property appraisals, credit reports, surveys, title examinations and
extracts, flood and tax certifications, and home inspections); the cost of
mortgage insurance or credit-risk price adjustments; the costs of title, hazard,
and flood insurance policies; state and local transfer taxes or fees; escrow
deposits for the future payment of taxes and insurance premiums; and other
miscellaneous fees and charges, which miscellaneous fee and charges, in total,
do not exceed 0.25 percent of the loan amount;
4
r. No
manufactured housing units underlie any Mortgage Loan in Loan Group
1;
s. None
of
the Mortgage Loans in Loan Group 1 are on a condominium unit that is part of
a
condominium development that operates as, or holds itself out to be, a
condominium hotel;
t. No
first
lien Mortgage Loan in Loan Group 1 has an original principal balance that
exceeds the applicable Xxxxxxx Mac loan limit;
u.
Each
Mortgage Loan in Loan Group 1 that is a “nontraditional mortgage loan” within
the meaning of the Interagency Guidance on Nontraditional Mortgage Product
Risks, 71 FR 58609 (October 4, 2006), and that has a residential loan
application date on or after September 13, 2007 (or, if such date cannot be
determined, an origination date of October 1, 2007), complies in all respects
with such guidance, including any interpretations, applications or
implementation plans with respect thereto that have been communicated and/or
agreed to by an institution’s regulator, regardless of whether the mortgage
loan’s originator or seller is subject to such guidance; and
v. The
Servicer for each Group 1 Mortgage Loan will fully furnish accurate and complete
information (i.e., favorable and unfavorable) on its borrower credit files
to
Equifax, Experian, and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis and in accordance with the Fair Credit
Reporting Act and its implementing regulations.
It
is
understood and agreed that the representations and warranties set forth in
this
Section 3 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 3. It
is
further understood and agreed that the Assignor shall be deemed not to have
made
the representations and warranties in this Section 3 with respect to, and to
the
extent of, representations and warranties made, as to the matters covered in
this Section 3, 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 3, and
no
other affiliate of the Assignor has made any representations or warranties
of
any kind to the Assignee.
4. Representations
and Warranties of the Assignee.
The
Assignee warrants and represents to, and covenants with, the Assignor and the
Company pursuant to Section 2.03 of the Servicing Agreement that:
a. The
Assignee agrees to be bound, as Owner, by all of the terms, covenants and
conditions of the Servicing Agreement and the Mortgage Loans and from and after
the date hereof, the Assignee assumes for the benefit of each of the Company
and
the Assignor all of the Assignor’s obligations as Owner thereunder;
b. The
Assignee understands that the Mortgage Loans have not been registered under
the
Securities Act or the securities laws of any state. The Assignee is not
acquiring the Mortgage Loans with a view to or for sale or other transfer in
connection with any distribution of the Mortgage Loans in any manner that would
violate the Securities Act or any applicable state securities law. The Assignee
considers itself a substantial, sophisticated institutional investor having
such
knowledge and experience in financial and business matters that it is capable
of
evaluating the merits and risks of investment in the Mortgage Loans. The
Assignee has been furnished with all information regarding the Mortgage Loans
that it has requested from the Assignor or the Company. Neither the Assignee
nor
anyone acting on its behalf has offered, transferred, pledged, sold or otherwise
disposed of the Mortgage Loans, any interest in the Mortgage Loans to, or
solicited any offer to buy or accept a transfer, pledge or other disposition
of
the Mortgage Loans, any interest in the Mortgage Loans from, or otherwise
approached or negotiated with respect to the Mortgage Loans, any interest in
the
Mortgage Loans with, any Person in any manner, or made any general solicitation
by means of general advertising or in any other manner or taken any other
action, which would constitute a distribution of the Mortgage Loans under the
Securities Act or which would render the disposition of the Mortgage Loans
a
violation of Section 5 of the Securities Act or require registration pursuant
thereto, nor will it act, nor has it authorized or will it authorize any person
to act, in such manner with respect to the Mortgage Loans;
c. The
Assignee is either (i) not an employee benefit plan that is subject to the
Employee Retirement Income Security Act of 1974, as amended (“ERISA”), or
Section 4975 of the Internal Revenue Code of 1986 (the “Code”)(a “Plan”) and not
a Person acting, directly or indirectly, on behalf of or investing with “plan
assets” of any such Plan or (ii) an employee benefit plan that is subject to
ERISA and the assignment contemplated herein does not constitute and will not
result in a non-exempt prohibited transaction under Section 406 of ERISA or
Section 4975 of the Code;
d. The
Assignee shall indemnify the Company for any loss or liability incurred by
the
Company arising (i) from any breach of warranty, representation or covenant
of
the Assignee made herein that materially and adversely affects the interests
of
the Company or (ii) by reasons of willful misfeasance, bad faith or negligence
of the Assignee in the performance of its duties hereunder or by reason of
reckless disregard of its obligations and duties hereunder;
6
e. 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 Servicing
Agreement or this Assignment Agreement;
f. 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 Servicing Agreement; and
g. 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. Recognition
of Assignee.
From
and after the date hereof, the Company 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. The Company acknowledges that the Mortgage Loans may
become part of a REMIC and the Company shall service the Mortgage Loans in
accordance with the Servicing Agreement, the terms of which are incorporated
herein by reference, but in no event in a manner that would (i) cause any REMIC
to fail to qualify as a REMIC or (ii) result in the imposition of a tax upon
any
REMIC (including but not limited to the tax on prohibited transactions as
defined in Section 860F(a)(2) of the Code and the tax on contributions to a
REMIC set forth in Section 860G(d) of the Code). It is the intention of the
Assignor, the Company and the Assignee that the Servicing Agreement shall be
binding upon and inure to the benefit of the Company and the Assignee and their
respective successors and assigns.
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 of the earlier of either discovery by the Assignor
of
such breach or 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 at the Purchase Price (as defined in the Trust Agreement).
Notwithstanding the foregoing, however, if such breach is a Qualification Defect
(as defined in the Trust Agreement), then such cure or repurchase must take
place within 45 days of discovery of such Qualification Defect.
7
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 Servicing
Agreement, but only insofar as the Servicing Agreement relates 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 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 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.
All demands and notices hereunder shall be in writing and shall be deemed to
have been
duly
given if personally delivered at or mailed by registered mail, postage prepaid,
or sent by overnight courier to (a) in the case of the Company, Residential
Funding Company, LLC, 0000 Xxxxxxxxxx Xxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxx 00000, Attention: Office of the President, and Residential Funding
Company, LLC, 0000 X. Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000,
Attention: Bond Administration Manager and/or such other address as may
hereafter be furnished to the Owner in writing by the Company; (b) in the case
of the Assignee, GS Mortgage Securities Corp., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxxxx House, Tel.: (000)
000-0000, Fax: (000) 000-0000 and/or such other address as may
hereafter be furnished by the Assignee; and (c) in the case of the Assignor,
Xxxxxxx Sachs Mortgage Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxxxx House, Tel.: (000) 000-0000,
Fax: (000) 000-0000, and/or such other address as may hereafter be
furnished by the Assignor.
10. 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. Capitalized
words and phrases used but not otherwise defined in this Assignment Agreement
shall have the respective meanings assigned to them in the Servicing
Agreement.
[SIGNATURE
PAGES TO FOLLOW]
8
IN
WITNESS WHEREOF, the parties have caused this Assignment Agreement to be
executed by their duly authorized officers as of the date first above
written.
ASSIGNEE:
GS
MORTGAGE SECURITIES CORP.
By: /s/
Xxxxxxxx Xxxx
Name:
Xxxxxxxx Xxxx
Title:
Vice President
ASSIGNOR:
XXXXXXX
SACHS MORTGAGE
COMPANY
By:
Xxxxxxx Xxxxx Real Estate Funding
Corp.,
its General Partner
By: /s/
Xxxxxxxx Xxxx
Name:
Xxxxxxxx Xxxx
Title:
Vice President
SERVICER:
RESIDENTIAL
FUNDING COMPANY, LLC
By:
/s/ Xxxxxxx Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Associate
SCHEDULE
A
Mortgage
Loan Schedule
[To
be
retained in a separate closing binder entitled “GSR 2007-OA2 Mortgage Loan
Schedule”
at
the
offices of XxXxx Xxxxxx LLP]
A-1
EXHIBIT
1
Servicing
Agreement
1-1
