ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT

 

ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT

 

 

RECITALS

 

WHEREAS Goldman Sachs Mortgage Company (“GSMC”) and the Servicer have entered into (i) a certain Amended and Restated Flow Seller’s Warranties and Servicing Agreement dated as of December 1, 2005, as amended by Amendment No. 1, dated as of July 1, 2006 (the “Servicing Agreement”) and (ii) the related Commitment Letters dated as of November 17, 2006 and January 3, 2007 (the “Commitment Letters”), pursuant to which GSMC has acquired certain mortgage loans, including the Mortgage Loans (as defined below);

 

WHEREAS, the Assignee has agreed on certain terms and conditions to purchase from the Assignor the Mortgage Loans acquired by the Assignor pursuant to the GSMC Assignment Agreement, which Mortgage Loans are listed on the mortgage loan schedule attached as Exhibit 1 hereto (the “AAR Mortgage Loan Schedule”); and

WHEREAS, pursuant to a Master Servicing and Trust Agreement dated as of February 1, 2007 (the “Trust Agreement”), among the Assignor, as depositor, the Assignee, as trustee, SunTrust Bank, as custodian (the “Custodian”), and Wells Fargo, as securities administrator (in such capacity, the “Securities Administrator”) and Master Servicer , the Assignor will transfer the Mortgage Loans to the Assignee on behalf of the trust fund (the “Trust Fund”), together with the Assignor’s rights under the Servicing Agreement, to the extent relating to the Mortgage Loans (other than the rights of the Assignor to indemnification thereunder).

 

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.

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 Mortgage Loans, the GSMC Assignment Agreement and the Servicing Agreements, 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 Servicing Agreement, to the extent relating to the Mortgage Loans from and after February 23, 2007, and the Servicer hereby acknowledges such assignment and assumption and hereby agrees to the release of the Assignor from any obligations under the Servicing Agreement from and after February 23, 2007, to the extent relating to the Mortgage Loans; 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 February 23, 2007. The Assignor shall remain liable for all such liability arising prior to February 23, 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 which would operate to impair or encumber the Assignor’s ownership interest in the Mortgage Loans since the date of the Servicing Agreement and the applicable date of each Commitment Letter.

(c)   The Servicer and the Assignor shall have the right to amend, modify or terminate the Servicing Agreement or the Commitment Letters without the joinder of the Assignee with respect to mortgage loans serviced under such Servicing Agreement but 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 the Servicing Agreement . The Servicer and the Assignor represent and warrant to the Assignee that (i) attached hereto as Exhibit 2 is a true, accurate and complete copy of the Servicing Agreement, (ii) the Servicing Agreement and the Commitment Letters are in full force and effect as of the date hereof, (iii) neither the Servicing Agreement nor the Commitment Letters have been amended or modified in any respect as to the Mortgage Loans, and (iv) no notice of termination has been given to the Servicer under the Servicing Agreement or the Commitment Letters. The Servicer, in its capacity as seller and servicer under the Servicing Agreement, further represents and warrants that the representations and warranties contained in Section 3.1 of the Servicing Agreement are true and correct as of February 23, 2007.

 

 

 

 

3.   Recognition of Assignee; Recognition of Master Servicer; Modifications . (a) From and after the date hereof, (i) the Assignor shall note the transfer of the Mortgage Loans to the Assignee in its books and records, (ii) the Assignor shall recognize the Assignee as the owner of the Mortgage Loans and (iii) the Servicer shall, subject to clause (b) below, service the Mortgage Loans for the benefit of the Assignee pursuant to the Servicing Agreement, as modified hereby. It is the intention of the Assignor, the Servicer and the Assignee through the execution of this Assignment Agreement that the Servicing Agreement shall be binding upon, and inure to the benefit of, the Assignee and its successors and assigns as to the Mortgage Loans.

 

(b)   The Servicer further acknowledges that, from and after the date hereof, it (and any of its successors under the Servicing Agreement) will be subject to the supervision of the Master Servicer (except that the Master Servicer shall not be responsible for supervising the servicing of defaulted Mortgage Loans and REO Properties) and that the Master Servicer, acting on behalf of the Assignee as the owner of the Mortgage Loans, shall have the same rights as were assigned by GSMC, in its capacity as the original purchaser under the Servicing Agreement, to the Assignor under the GSMC Assignment Agreement, and further assigned by the Assignor to the Assignee, on behalf of the Trust Fund, hereunder.

(d)   All reports, notices and other written information as to the Mortgage Loans required to be delivered to the Assignee, as the successor in interest to GSMC and the Assignor under the Servicing Agreement, shall also be delivered to the Master Servicer at the address set forth in Section 9 hereof. All remittances required to be made to the Assignee, as the successor in interest to GSMC and the Assignor under the Servicing Agreement, shall be made instead to the Master Servicer by wire transfer to the following account:

 

 

 

 

4.   Representations and Warranties of the Assignee . The Assignee hereby represents and warrants as follows:

 

(a)   Authority . The Assignee is duly and legally authorized to enter into this Assignment Agreement and to perform its obligations hereunder and under the Servicing Agreement.

 

(b)   Enforceability . This Assignment Agreement has been duly authorized, executed and delivered by the Assignee 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 proceed-ing in equity or at law).

 

5.   Representations and Warranties of the Assignor . The Assignor hereby represents and warrants 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 Servicing Agreement, the Commitment Letters, 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 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 (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)   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, cancelled, or subordinated in whole or in part, or rescinded any Mortgage, and the Assignor has not released any Mortgaged Property from the lien of the related Mortgage, in whole or in part, nor has the Assignor executed an instrument that would effect any such release, cancellation, subordination, or rescission. The Assignor has not released any Mortgagor, in whole or in part, except in connection with an assumption agreement or other agreement approved by the related Federal Insurer, to the extent such approval was required.

 

(h)   Mortgage Loans . With respect to the Mortgage Loans, the representations and warranties contained in Section 3.2 of the Servicing Agreement, to the extent they relate to matters arising on or after the related Closing Date (as defined in the 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 3.2 of the Servicing Agreement to (i) the “Cut-off Date” shall be deemed to be a reference to February 1, 2007, (ii) the “Mortgage Loan Schedule” shall be deemed to be a reference to Exhibit 1 hereto and (iii) the “Closing Date” shall be deemed to be a reference to February 23, 2007.

(i)   Predatory Lending . 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.  

 

 

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.

It is understood and agreed that the representations and warranties set forth in this Section 5 shall survive the sale of the Mortgage Loans to the Assignee and the 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, the Master Servicer or the Assignee of a breach of the foregoing representations and warranties, the party discovering such breach shall give prompt written notice thereof 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.

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 discovery of such Qualification Defect.

 

 

 

 

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 relate to such Mortgage Loans.

 

Except as specifically set forth herein, the Assignor 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 respective terms.

 

8.   Governing Law . THIS ASSIGNMENT AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

 

EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS ASSIGNMENT AGREEMENT, OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF SUCH PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS ASSIGNMENT AGREEMENT.

 

9.   Notices . Any notices or other communications permitted or required hereunder or under the Servicing Agreement shall be in writing and shall be deemed conclusively to have been given if personally delivered at or mailed by registered mail, postage prepaid, and return receipt requested or transmitted by facsimile and confirmed by a similar mailed writing, to:

 

 

SunTrust Mortgage, Inc.

1001 Semmes Avenue

Richmond, Virginia 23224

Attention: Annette Holman-Foreman

Telephone (804) 291-0262

Facsimile: (804) 291-0950

 

 

 

 

(b)   in the case of the Assignee,

 

 

(c)   in the case of the Assignor,

 

 

 

(d)   in the case of the Master Servicer,

 

 

or such other address as may hereafter be furnished by the Master Servicer.

 

10.   Amendment to Servicing Agreement . In connection with the transfer of the Mortgage Loans hereunder, the Servi