EXECUTION
ASSIGNMENT, ASSUMPTION AND
RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES
CORP.,
as
Assignor
U.S. BANK NATIONAL
ASSOCIATION, AS TRUSTEE
as
Assignee
and
WELLS FARGO BANK,
N.A.
as
Servicer
and as acknowledged
by
WELLS FARGO BANK,
N.A.,
as Master
Servicer
Dated as
of
March 1,
2007
ASSIGNMENT, ASSUMPTION AND
RECOGNITION AGREEMENT
This ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT made this 1st day of March 2007 (this “
Assignment Agreement ”), is among Wells Fargo Bank,
N.A., a national banking association (“ Wells Fargo
”), as servicer (in such capacity, the “
Servicer ”), U.S. Bank National Association (“
U.S. Bank ”), not in its individual capacity, but
solely as trustee on behalf of GSR Mortgage Loan Trust 2007-2F (the
“ Assignee ” or the “ Trustee
”) and GS Mortgage Securities Corp., a Delaware corporation
(the “ Assignor ” or the “
Depositor ”), and is acknowledged by Wells Fargo, as
master servicer (in such capacity, the “ Master
Servicer ”).
WHEREAS, Bank of America, National Association
(“Bank of America”) and Wells Fargo have entered into
an Amended and Restated Master Mortgage Loan Purchase Agreement,
dated as of December 1, 2005 (the “ 2005 Purchase
Agreement ”), an Amended and Restated Master
Seller’s Warranties and Servicing Agreement, dated as of
December 1, 2005 (the “ 2005 MSWSA ”) and
the Assignment and Conveyance Agreement (WFHM 2005-W97), dated
December 15, 2005 (the “ 2005 ACA ”), pursuant
to which Wells Fargo sold certain mortgage loans to Bank of America
(the “ 2005 Wells Fargo Mortgage Loans
”);
WHEREAS, Bank of America and Wells Fargo have
entered into a Second Amended and Restated Master Mortgage Loan
Purchase Agreement, dated as of May 1, 2006 (the “
2006 MSWSA ”) and the Assignment and Conveyance
Agreement (WFHM 2006-W33), dated May 24, 2006 (the “ 2006
ACA ”), pursuant to which Wells Fargo sold certain
mortgage loans to Bank of America (the “ 2006 Wells Fargo
Mortgage Loans ” and, together with the 2005 Wells Fargo
Mortgage Loans, the “ Wells Fargo Mortgage Loans
”);
WHEREAS, Bank of America and DLJ Mortgage
Capital, Inc . (“ DLJ Mortgage
”) have entered into a Mortgage Loan Purchase Agreement,
dated as of July 1, 2006 (the “ DLJ Purchase Agreement
”), pursuant to which DLJ Mortgage sold certain mortgage
loans to Bank of America (the “ DLJ Mortgage Loans
”);
WHEREAS, Goldman Sachs Mortgage Company (“
GSMC ”) has purchased from Bank of America, and Bank
of America has assigned and conveyed to GSMC, certain of the Wells
Fargo Mortgage Loans and certain of the DLJ Mortgage Loans (the
“ Transferred Mortgage Loans ”) pursuant to (i)
in the case of the Wells Fargo Mortgage Loans, the Assignment,
Assumption and Recognition Agreement dated as of February 26, 2007,
among Bank of America, the Servicer and GSMC (the “ Bank
of America Underlying Assignment Agreement ”), (ii) in
the case of the DLJ Mortgage Loans, the Assignment, Assumption, and
Recognition Agreement dated as of February 26, 2007 among Bank of
America, DLJ Mortgage, the Servicer and GSMC (the “ DLJ
Underlying Assignment Agreement ” and, together with the
Bank of America Underlying Assignment Agreement, the “
Underlying Assignment Agreements ”) and (iii) the
related trade confirmation dated as of January 3, 2007 (the “
Trade Confirmation ”) between GSMC and Bank of
America;
WHEREAS, GSMC and the Servicer entered into that
certain Second Amended and Restated Master Seller’s
Warranties and Servicing Agreement dated as of November 1,
2005, (the “ Servicing Agreement ” and, together
with the Underlying Assignment Agreements, the “
Agreements ”), under which the Servicer agreed to
service the Transferred Mortgage Loans for the benefit of
GSMC;
WHEREAS, GSMC has assigned and conveyed certain
of the Transferred Mortgage Loans (the “Mortgage
Loans”), which are subject to the relevant provisions of the
Agreements, to the Assignor pursuant to an Assignment, Assumption
and Recognition Agreement dated as of March 1, 2007 (the “
GSMC Assignment Agreement ”), which mortgage loans are
listed on the mortgage loan schedule (the “ Mortgage Loan
Schedule ”) attached as Exhibit 1
hereto;
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; and
WHEREAS, pursuant to a Master Servicing and
Trust Agreement dated as of March 1, 2007 (the “ Trust
Agreement ”), among the Depositor, the Trustee, as
trustee and as a custodian, Wells Fargo, as securities
administrator and master servicer, and Deutsche Bank National Trust
Company, as a custodian, the Assignor will transfer the Mortgage
Loans to the Assignee, together with the Assignor’s rights
under the Agreements and Section S of the Trade Confirmation, to
the extent relating to the Mortgage Loans (other than the rights of
the Assignor to indemnification thereunder).
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. Servicing . The Servicer agrees, with respect to the
Mortgage Loans, to perform and observe the duties, responsibilities
and obligations that are to be performed and observed under the
provisions of the Agreements, except as otherwise provided herein,
and that the provisions of the Agreements, as modified herein, are
and shall be a part of this Assignment Agreement to the same extent
as if set forth herein in full.
2. 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 and the Agreements,
and all of its rights under Section S of the Trade Confirmation, 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
Agreements and Section S of the Trade Confirmation, to the extent
relating to the Mortgage Loans from and after the date hereof;
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 GSMC Assignment Agreements
arising prior to the date hereof. The Assignor shall remain liable
for all such liability arising prior to the date hereof and for its
own actions and omissions apart from those assumed by the Assignee.
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 the date hereof, to
the extent relating to the Mortgage Loans.
(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 Underlying Assignment
Agreements.
(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.
3. Accuracy of the Agreements
. The Servicer and the Assignor
represent and warrant to the Assignee that (i) attached hereto as
Exhibit 2 are true, accurate and complete copies of the
Agreements, (ii) the Agreements are in full force and effect as of
the date hereof and (iii) the Agreements have not been further
amended or modified in any respect.
The Servicer further represents and warrants
that (i) no notice of termination has been given to the Servicer
under the Servicing Agreement and (ii) the representations and
warranties contained in Section 3.1 of the Servicing Agreement, as
modified by the applicable Underlying Assignment Agreements, are
true and correct as of March 30, 2007.
The Assignor
further represents and warrants to the Assignee that (i) attached
hereto as Exhibit 3 is a true, accurate and complete copy of
Section S of the Trade Confirmation, (ii) the Trade Confirmation is
in full force and effect as of the date hereof and (iii) the Trade
Confirmation has not been further amended or modified in any
respect.
4. Recognition of Assignee .
(a) 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, notwithstanding anything herein or in the
Servicing Agreement (as modified by the applicable Underlying
Assignment Agreement) to the contrary, shall service all of the
Mortgage Loans for the benefit of the Assignee pursuant to the
Servicing Agreement (as modified by the applicable Underlying
Assignment Agreement), the terms of which are incorporated herein
by reference, whether or not such Mortgage Loans have been serviced
pursuant to such agreement prior to the date hereof. It is the
intention of the Assignor, the Servicer, and the Assignee that the
Agreements shall be binding upon and inure to the benefit of the
Servicer and the Assignee and their successors and assigns. In
addition, it is the intention of the Assignor and the Assignee that
Section S of the Trade Confirmation shall be binding upon and inure
to the benefit of the Assignee and its successors and
assigns.
(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 hereunder by the Assignor to the Assignee, on behalf of
the Trust. Such rights that the Master Servicer may enforce on
behalf of the Assignee will include, without limitation, the right
to terminate the Servicer under the Servicing Agreement upon the
occurrence of an event of default thereunder, the right to receive
all remittances required to be made by the Servicer under the
Servicing Agreement, the right to receive all monthly reports and
other data required to be delivered by the Servicer under the
Servicing Agreement and the right to exercise certain rights of
consent and approval relating to actions taken by the
Servicer.
(c) All reports and other data required to be
delivered by the Servicer to the “Purchaser” under the
Servicing Agreement shall be delivered to the Master Servicer or
the Assignee, as designated by the Assignee, at the address set
forth in Section 11 hereof. All remittances required to be made to
the Assignee, as the successor in interest to the Assignor under
the Servicing Agreement, shall be made instead to the Master
Servicer by wire transfer to the following account:
FOR CREDIT TO:
SAS CLEARING
REFERENCE: GSR 2007-2F Acct #
53136200
Notwithstanding anything to the contrary in the
Servicing Agreement, with respect to the Mortgage Loans, not later
than the tenth calendar day of each month (or if such tenth
calendar day is not a Business Day, the immediately succeeding
Business Day), the Servicer shall furnish to the Master Servicer
(i)(a) monthly loan data in a mutually agreed-upon format, (b)
default loan data in the format set forth in Exhibit 7 and
Exhibit 8 hereto (or in such other format mutually agreed
upon between the Servicer and the Master Servicer) and (c)
information regarding the realized losses and gains in the format
set forth in Exhibit 5 and Exhibit 6 hereto (or in
such other format mutually agreed upon between the Servicer and the
Master Servicer), in each case relating to the period ending on the
last day of the preceding calendar month, (ii) all such information
required pursuant to clause (i)(a) above on a magnetic tape,
electronic mail, or other similar media reasonably acceptable to
the Master Servicer and (iii) all supporting documentation with
respect to the information required under the preceding
paragraph.
5. 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 and Section S of the Trade
Confirmation.
(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).
6. Representations and Warranties of the Assignor.
The Assignor hereby represents and warrants to the Assignee 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, the Trade Confirmation 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, 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
. Any and all requirements of any
federal, state or local law including, without limitation, usury,
truth-in-lending, real estate settlement procedures, consumer
credit protection, equal credit opportunity, predatory and abusive
lending or disclosure laws applicable to the Mortgage Loans have
been complied with. All inspections, licenses and certificates
required to be made or issued with respect to all occupied portions
of the Mortgaged Properties and, with respect to the use and
occupancy of the same, including but not limited to certificates of
occupancy and fire underwriting certificates, have been made or
obtained from the appropriate authorities.
(i) HOEPA . 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 LEVELS â Glossary and no Mortgage Loan originated on or
after October 1, 2002 through March 6, 2003 is governed by the
Georgia Fair Lending Act.
(j) Bring Down . With respect to the Agreements, nothing has
occurred or failed to occur from and after the closing date set
forth in the Underlying Assignment Agreement to March 30, 2007 that
would cause any of (i) with respect to those Mortgage Loans
purchased pursuant to the 2005 ACA, the representations and
warranties contained in Section 3.02 of the 2005 MSWSA, (ii)
with respect to those Mortgage Loans purchased pursuant to the 2006
ACA, the representations and warranties contained in
Section 3.02 of the 2006 MSWSA or (iii) with respect to those
Mortgage Loans purchased pursuant to the DLJ Purchase Agreement,
the representations and warranties contained in
Section 4.1(vii) of such agreement, 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 6
shall survive delivery of the respective Mortgage Loan Documents to
the custodian and shall inure to the benefit of the Assignee and
it
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