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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 1, 2007
ASSIGNMENT, ASSUMPTION AND RECOGNITION
AGREEMENT
This
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made as of
this 1
st 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 Wells Fargo Bank, N.A., as master servicer (the
“
Master Servicer ”).
WHEREAS,
Goldman Sachs 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, Wells
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.
(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.
(b)
Enforceability .
This Assignment Agr
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