GSAA HOME EQUITY TRUST 2007-5 ASSET-BACKED CERTIFICATES SERIES 2007-5 ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GOLDMAN SACHS MORTGAGE COMPANY, as Assignor GS MORTGAGE SECURITIES CORP., as Assignee and AVELO MORTGAGE, L.L.C. as the...
EXECUTION
COPY
ASSET-BACKED
CERTIFICATES
SERIES
2007-5
among
XXXXXXX
XXXXX MORTGAGE COMPANY,
as
Assignor
GS
MORTGAGE SECURITIES CORP.,
as
Assignee
and
AVELO
MORTGAGE, L.L.C.
as
the Company
Dated
as of
April
30, 2007
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT, dated April 30, 2007 (this “Agreement”),
among
Xxxxxxx Xxxxx Mortgage Company (“Assignor”),
GS
Mortgage Securities Corp. (“Assignee”)
and
Avelo Mortgage, L.L.C. ( the “Company”)
(the
“Step
1
Assignment Agreement”).
For
and
in consideration of the mutual promises contained herein and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, and of the mutual covenants herein contained, the parties hereto
hereby agree as follows:
1. Assignment,
Assumption and Conveyance.
The
Assignor hereby conveys, sells, grants, transfers and assigns to the Assignee
all of the right, title and interest (other than those rights specifically
retained by the Assignor pursuant to this Agreement) of the Assignor, as
purchaser, in, to and under (a) certain mortgage loans acquired through the
Xxxxxxx Xxxxx Residential Mortgage Conduit Program (the “Mortgage
Loans”)
listed
on the schedule (the “Mortgage
Loan Schedule”)
attached hereto as Exhibit
A,
and (b)
solely insofar as it relates to the Mortgage Loans, that certain Flow Servicing
Agreement, dated as of January 1, 2006 (the “Servicing
Agreement”),
by
and between the Assignor, as owner (the “Owner”)
and
the Company. The Assignor hereby agrees that it will (i) deliver possession
of
notes evidencing the Mortgage Loans to, or at the direction of, the Assignee
or
its designee and (ii) take in a timely manner all necessary steps under all
applicable laws to convey and to perfect the conveyance of the Mortgage Loans
as
required under the Trust Agreement (as defined below).
The
Assignor specifically reserves and does not assign to the Assignee hereunder
(i)
any and all right, title and interest in, to and under and any obligations
of
the Assignor with respect to any mortgage loans subject to the Servicing
Agreement that are not the Mortgage Loans set forth on the Mortgage Loan
Schedule and are not the subject of this Agreement, (ii) any rights and
obligations of the Assignor pursuant to the Servicing Agreement arising prior
to
the date hereof or (iii) the rights and obligations of the Owner under the
following sections of the Servicing Agreement: Section 6.02 (relating to the
Owner’s right to terminate the Company), Section 5.01 (relating to the Owner’s
right to receive information from the Company) and Section 11.16 (relating
the
Owner’s obligation to execute certain confidentiality agreements).
The
Assignee hereby assumes all of the Assignor’s obligations under the Mortgage
Loans and the Servicing Agreement solely insofar as such obligations relate
to
the Mortgage Loans, other than the obligations set forth in clauses (ii) and
(iii) of the preceding paragraph.
The
parties hereto agree that with respect to the Mortgage Loans being serviced
under the Servicing Agreement the Servicing Fee Rate for the Mortgage Loans
shall be as specified on the Mortgage Loan Schedule.
2. Recognition
of the Company.
From
and
after the date hereof (the “Securitization
Closing Date”),
the
Company shall and does hereby recognize that the Assignee will transfer the
Mortgage Loans and assign its rights under the Servicing Agreement (solely
to
the extent set forth herein) and this Agreement to Deutsche Bank National Trust
Company (“Deutsche
Bank”),
as
trustee (including its successors in interest and any successor trustees under
the Trust Agreement, the “Trustee”),
of
the GSAA Home Equity Trust 2007-5 (the “Trust”)
created pursuant to a Master Servicing and Trust Agreement, dated as of April
1, 2007 (the “Trust
Agreement”),
among
the Assignee, the Trustee, U.S. Bank National Association, as a custodian,
Deutsche Bank, as a custodian, The Bank of New York Trust Company, National
Association, as a custodian and Xxxxx Fargo Bank, National Association, as
master servicer (including its successors in interest and any successor servicer
under the Trust Agreement, in such capacity, the “Master
Servicer”),
securities administrator and as a custodian.
The
Company hereby acknowledges and agrees that from and after the date hereof
(i)
the Trust will be the owner of the Mortgage Loans and the Company will be the
servicer of the Mortgage Loans on or after the applicable Transfer Date pursuant
to the terms set forth in the Servicing Agreement as modified hereby, (ii)
the
Company shall look solely to the Trust (including the Trustee and the Master
Servicer acting on the Trust’s behalf) for performance of any obligations of the
Assignor under the Mortgage Loans and the Servicing Agreement (solely insofar
as
it relates to the Mortgage Loans) (except for such obligations of the Assignor
retained by the Assignor hereunder), (iii) 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 (A) the Mortgage
Loans, under the applicable purchase agreement pursuant to which the Owner
purchased the related Mortgage Loans from the related Seller, including, without
limitation, the enforcement of the document delivery requirements set forth
in
Section 5(b) of the related purchase agreement and (B) the Servicing Agreement
and shall be entitled to enforce all of the obligations of the Company
thereunder insofar as they relate to the Mortgage Loans, including without
limitation, the remedies for breaches of representations and warranties set
forth in Article IX of the Servicing Agreement (except for the rights and
remedies retained by the Assignor hereunder), (iv) all references to the Owner
under the Servicing Agreement insofar as they relate to the Mortgage Loans
shall
be deemed to refer to the Trust (except to the extent of the rights and
obligations retained by the Assignor hereunder) (including the Trustee and
the
Company acting on the Trust’s behalf) and (v) the Mortgage Loans will be part of
a REMIC, and the Company shall service the Mortgage Loans and any real property
acquired upon default thereof (including, without limitation, making or
permitting any modification, waiver or amendment of any term of any Mortgage
Loan) after the applicable Transfer Date in accordance with the Servicing
Agreement but in no event in a manner that would (A) cause the REMIC to fail
to
qualify as a REMIC or (B) result in the imposition of a tax upon the REMIC
(including but not limited to the tax on prohibited transactions as defined
in
Section 860F(a)(2) of the Code, the tax on contributions to a REMIC set forth
in
Section 860G(d) of the Code, and the tax on “net income from foreclosure
property” as set forth in Section 860G(c) of the Code). Neither the Company nor
the Assignor shall amend or agree to amend, modify, waive, or otherwise alter
any of the terms or provisions of the Servicing Agreement which amendment,
modification, waiver or other alteration would in any way affect the Mortgage
Loans or the Company’s performance under the Servicing Agreement with respect to
the Mortgage Loans without the prior written consent of the Master Servicer.
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3. Modification
of the Servicing Agreement.
Only in
so far as it relates to the Mortgage Loans, the Company and the Assignor hereby
amend the Servicing Agreement as follows:
(a) The
definition of “Servicing Fee Rate” set forth in Article I shall be deleted in
its entirety and replaced with the following:
“Servicing
Fee Rate:
As set
forth on the Mortgage Loan Schedule attached as Exhibit A to the Assignment,
Assumption and Recognition Agreement, dated as of April 30, 2007, among Xxxxxxx
Xxxxx Mortgage Company, as Assignor, GS Mortgage Securities Corp., as Assignee
and Avelo Mortgage, L.L.C., as the Company. ”
(b) the
second paragraph of Section 2.01 shall be deleted and replaced as follows:
“Subject
only to the Accepted Servicing Practices and the terms of this Agreement and
of
the respective Mortgage Loans, the Servicer shall have full power and authority
to do or cause to be done any and all things in connection with such servicing
and administration which it may deem necessary or desirable. Without limiting
the generality of the foregoing, the Servicer in its own name or in the name
of
the Owner, is hereby authorized and empowered by the Owner when the Servicer
believes it appropriate in its best judgment in accordance with Accepted
Servicing Practices, to execute and deliver any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Mortgage Loans and the
Mortgaged Properties and to institute foreclosure proceedings or obtain a deed
in lieu of foreclosure so as to convert the ownership of such properties, and
to
hold or cause to be held title to such properties, in the name of the Servicer
on behalf of the Owner and without reference to the Owner except as otherwise
required by law. The Owner shall execute, at the written request of the
Servicer, and furnish to the Servicer such documents as are necessary or
appropriate to enable the Servicer to carry out its servicing and administrative
duties hereunder, and the Owner hereby grants to the Servicer, and this
Agreement shall constitute, a power of attorney to carry out such duties
including a power of attorney to take title to Mortgaged Properties after
foreclosure on, in the name of the Servicer on behalf of the Owner and without
reference to the Owner except as otherwise required by law. Except as otherwise
provided herein, the Owner shall not be liable for the actions of the Servicer
under such powers of attorney.
Notwithstanding
anything in this Agreement to the contrary, the Servicer shall not (i) permit
any modification with respect to any Mortgage Loan that would change the
Mortgage Interest Rate, reduce or increase the principal balance (except for
reductions resulting from actual payments of principal) or change the final
maturity date on such Mortgage Loan (except for (A) a reduction of interest
or
principal payments resulting from the application of the Servicemembers Civil
Relief Act or any similar state statutes or (B) as provided in Section 2.03,
if
the Mortgagor is in default with respect to the Mortgage Loan or such default
is, in the judgment of the Servicer, reasonably foreseeable) or (ii) except
as
provided in Section 2.03, waive any prepayment penalty or premium.”
4
(c) Section
2.03 shall be deleted and replaced as follows:
“The
Servicer shall make reasonable efforts to collect all payments called for under
the terms and provisions of the Mortgage Loans and shall, to the extent such
procedures shall be consistent with this Agreement and the terms and provisions
of any applicable insurance policies insuring the Mortgage Loan or the related
Mortgaged Property, follow such collection procedures as it would follow with
respect to mortgage loans comparable to the Mortgage Loans and held for its
own
account. Consistent with the foregoing and Accepted Servicing Practices, the
Servicer may (i) waive any late payment charge or, if applicable, any penalty
interest, or (ii) extend the Due Dates for the Monthly Payments due on a
Mortgage Note for a period of not greater than 180 days; provided, that any
extension pursuant to clause (ii) above shall not affect the amortization
schedule of any Mortgage Loan for purposes of any computation hereunder, except
as provided below. In the event of any such arrangement pursuant to clause
(ii)
above, the Servicer shall make Monthly Advances on such Mortgage Loan during
such extension pursuant to Section 3.04 and in accordance with the amortization
schedule of such Mortgage Loan without modification thereof by reason of such
arrangements; provided that the Servicer shall not be obligated to make Monthly
Advances which the Servicer determines to be Nonrecoverable Advances.
Notwithstanding the foregoing, in the event that any Mortgage Loan is in default
or, in the judgment of the Servicer, such default is reasonably foreseeable,
the
Servicer, consistent with the Accepted Servicing Practices, may also waive,
modify or vary any term of such Mortgage Loan (including modifications that
would change the Mortgage Interest Rate, forgive the payment of principal or
interest, extend the final maturity date of such Mortgage Loan or waive, in
whole or in part, a prepayment penalty or premium), accept payment from the
related Mortgagor of an amount less than the outstanding principal balance
in
final satisfaction of such Mortgage Loan, or consent to the postponement of
strict compliance with any such term or otherwise grant indulgence to any
Mortgagor (any and all such waivers, modifications, variances, forgiveness
of
principal or interest, postponements, or indulgences collectively referred
to
herein as “Forbearance”). The Servicer’s analysis supporting any Forbearance and
the conclusion that any Forbearance meets the Accepted Servicing Practices
shall
be reflected in writing in the Servicing File. Notwithstanding the foregoing,
a
Servicer may waive, in whole or in part, a prepayment penalty or premium only
under the following circumstances: (i) such waiver relates to a default or
a
reasonably foreseeable default and would, in the reasonable judgment of the
Servicer, maximize recovery of total proceeds taking into account the value
of
such prepayment penalty or premium and the related Mortgage Loan, (ii) such
prepayment penalty or premium is not permitted to be collected by applicable
federal, state or local law or regulation, (iii) the collection of such
prepayment penalty or premium would be considered “predatory” pursuant to
written guidance published or issued by any applicable federal, state or local
regulatory authority acting in its official capacity and having jurisdiction
over such matters, (iv) the enforceability thereof is limited (1) by bankruptcy,
insolvency, moratorium, receivership or other similar laws relating to
creditor’s rights generally or (2) due to acceleration in connection with a
foreclosure or other involuntary payment or (v) if the Servicer has not been
provided with information sufficient to enable it to collect the prepayment
penalty or premium. If a prepayment penalty or premium is waived other than
as
permitted in this Section 2.03, then the Servicer is required to pay the amount
of such waived prepayment penalty or premium, by depositing such amount into
the
Collection Account as soon as possible after the date of payoff, but in no
event
later than five (5) Business Days from such date.”
5
(d) Section
2.05 shall be amended as follows:
| (i) | “and” shall be deleted from the end of subsection (vii); |
|
(ii)
|
subsection
(viii) shall be amended by deleting the “.” at the end of subsection
(viii) and replacing it with “;
and ”
|
|
(iii)
|
a
new subsection (ix) shall be added to Section 2.05 immediately following
subsection (viii) which shall read as
follows:
|
“(ix) to
reimburse
itself
for Monthly Advances of the Servicer’s funds made pursuant to Section 3.04, the
Servicer’s right to reimburse itself pursuant to this subclause (ix) being
limited to related Liquidation Proceeds, Condemnation Proceeds, Insurance
Proceeds and such other amounts as may be collected by the Servicer from the
Mortgagor or otherwise relating to the Mortgage Loan, including amounts received
on the related Mortgage Loan which represent late payments of principal and/or
interest respecting which any such advance was made, it being understood that,
in the case of any such reimbursement, the Servicer’s right thereto shall be
prior to the rights of Owner.”
(e) the
third
paragraph of Section 2.18 shall be deleted and replaced as follows:
“The
Servicer shall use its best efforts to dispose of the REO Property as soon
as
possible and shall sell such REO Property in any event within one year after
title has been taken to such REO Property, unless (i) a REMIC election has
not
been made with respect to the arrangement under which the Mortgage Loans and
the
REO Property are held, and (ii) the Servicer determines, and gives an
appropriate notice to the Owner to such effect, that a longer period is
necessary for the orderly liquidation of such REO Property; provided however,
that the Servicer agrees not to sell or dispose of any such REO Property to
a
person who acquires such REO Property using a purchase money mortgage. If a
period longer than one year is permitted under the foregoing sentence and is
necessary to sell any REO Property, the Servicer shall report monthly to the
Owner as to the progress being made in selling such REO Property, and provided
further, that if the Servicer is unable to sell such REO Property within three
years of acquisition, the Servicer shall obtain an extension from the Internal
Revenue Service.”
(f) the
third
paragraph of Section 3.01 shall be deleted and replaced as follows:
“With
respect to any remittance received by the Owner after the Business Day on which
such payment was due, the Servicer shall pay to the Owner interest on any such
late payment at an annual rate equal to the Prime Rate, adjusted as of the
date
of each change, plus three percentage points, but in no event greater than
the
maximum amount permitted by applicable law. Such interest shall be deposited
in
the Custodial Account by the Servicer on the date such late payment is made
and
shall cover the period commencing with the day the payment was due and ending
with the Business Day on which such payment is made, both inclusive. Such
interest shall be remitted along with the distribution payable on the next
succeeding Remittance Date. The payment by the Servicer of any such interest
shall not be deemed an extension of time for payment or a waiver of any Event
of
Default by the Servicer.”
6
(g) Section
3.04 will be amended by adding a new paragraph as follows:
“In
the
event that the Servicer determines that any such advances are Non-Recoverable
Advances, the Servicer shall provide the Owner with a certificate signed by
an
officer of the Servicer evidencing such determination. Notwithstanding the
foregoing, the Servicer shall not be permitted to make any advances from amounts
held for future distribution, and instead shall be required to make all advances
from its own funds, unless the Servicer, its parent, or their respective
successors hereunder shall have a long term credit rating of at least “A” by
Fitch, Inc., or the equivalent rating of another Rating Agency.”
(h) a
new
section, Section 11.17, will be added immediately following Section 11.16 which
shall read as follows:
“Section
11.17 Third-Party
Beneficiary.
Xxxxx
Fargo Bank, National Association, as master servicer under the Master Servicing
and Trust Agreement, dated as of April 1, 2007, among GS Mortgage Securities
Corp., as depositor, U.S. Bank National Association, as a custodian, Deutsche
Bank National Trust Company, as trustee and as a custodian, The Bank of New
York
Trust Company, National Association, as a custodian and Xxxxx Fargo Bank,
National Association, as master servicer, securities administrator and as a
custodian shall be considered a third-party beneficiary to this Agreement
entitled to all of the rights and benefits accruing to it as if it were a direct
party to this Agreement.”
4. Representations
and Warranties of the Company.
The
Company warrants and represents to and covenants with, the Assignor, the
Assignee and the Trust as of the date hereof that:
(a) The
Company is duly organized, validly existing and in good standing under the
laws
of the jurisdiction of its formation;
(b) The
Company has full power and authority to execute, deliver and perform its
obligations under this Agreement and has full power and authority to perform
its
obligations under the Servicing Agreement. The execution by the Company of
this
Agreement is in the ordinary course of the Company’s business and will not
conflict with, or result in a breach of, any of the terms, conditions or
provisions of the Company’s charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Company is now a party or by
which
it is bound, or result in the violation of any law, rule, regulation, order,
judgment or decree to which the Company or its property is subject. The
execution, delivery and performance by the Company of this Agreement have been
duly authorized by all necessary corporate action on part of the Company. This
Agreement has been duly executed and delivered by the Company, and, upon the
due
authorization, execution and delivery by the Assignor and the Assignee, will
constitute the valid and legally binding obligation of the Company, enforceable
against the Company in accordance with its terms except as enforceability may
be
limited by bankruptcy, reorganization, insolvency, moratorium or other similar
laws now or hereafter in effect relating to creditors’ rights generally, and by
general principles of equity regardless of whether enforceability is considered
in a proceeding in equity or at law;
7
(c) No
consent, approval, order or authorization of, or declaration, filing or
registration with, any governmental entity is required to be obtained or made
by
the Company in connection with the execution, delivery or performance by the
Company of this Agreement or the consummation by it of the transaction
contemplated hereby;
(d) The
Company shall establish a Custodial Account and an Escrow Account under the
Servicing Agreement in favor of the Trust with respect to the Mortgage Loans
separate from the Custodial Account and Escrow Account previously established
under the Servicing Agreement in favor of the Assignor;
(e) There
is
no action, suit, proceeding or investigation pending or threatened against
the
Company, before any court, administrative agency or other tribunal, which would
draw into question the validity of this Agreement or the Servicing Agreement,
or
which, either in any one instance or in the aggregate, is likely to result
in
any material adverse change in the ability of the Company to perform its
obligations under this Agreement or the Servicing Agreement, and the Company
is
solvent;
(f) To
the
extent the Mortgage Loans have been transferred to the Company as of the date
hereof, the Company has serviced the Mortgage Loans in accordance with the
Servicing Agreement and has provided accurate “paid through” data (assuming the
correctness of all “paid through” data provided by the Assignor to the Company
at the time the Company began servicing the Mortgage Loans) with respect to
the
Mortgage Loans to the Assignor;
(g) To
the
extent the Mortgage Loans have been transferred to the Company as of the date
hereof, except as reflected in the “paid through” data delivered to the Assignor
(assuming the correctness of all “paid through” data provided by the Assignor to
the Company at the time the Company began servicing the Mortgage Loans), there
is no payment default existing under any Mortgage or any Mortgage Note as of
the
Securitization Closing Date; and
(h) To
the
extent the Mortgage Loans have been transferred to the Company as of the date
hereof, to the Company’s knowledge, there is no non-payment default existing
under any Mortgage or Mortgage Note, or any event which, with the passage of
time or with notice and the termination of any grace or cure period, would
constitute a non-payment default, breach, violation or event which would permit
acceleration as of the Securitization Closing Date.
Pursuant
to Section 9.01 of the Servicing Agreement, the Company hereby represents and
warrants, for the benefit of the Assignor, the Assignee and the Trust, that
the
representations and warranties set forth in Article IX of the Servicing
Agreement are true and correct as of the date hereof as if such representations
and warranties were made on the date hereof.
8
5. Representations
and Warranties of the Assignor.
The
Assignor warrants and represents to the Assignee and the Trust as of date hereof
that:
(a) 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;
(b) 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;
(c) No
Waiver.
The
Assignor has not waived the performance by any Mortgagor of any action, if
such
Xxxxxxxxx’s failure to perform such action would cause the Mortgage Loan to be
in default, nor has the Company waived any default resulting from any action
or
inaction by such Mortgagor;
(d) Compliance
with Applicable Laws.
With
respect to each Mortgage Loan, 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 such Mortgage
Loan, including without limitation, any provisions relating to prepayment
charges, have been complied with;
(e) High
Cost.
With
respect to the Mortgage Loans, no Mortgage Loan is categorized as “High Cost”
pursuant to the then-current Standard & Poor’s Glossary for File Format for
LEVELS® Version 5.7, Appendix E, as revised from time to time and in effect as
of the Original Purchase Date. Furthermore, none of the Mortgage Loans sold
by
the Seller are classified as (a) a “high cost mortgage” loan under the Home
Ownership and Equity Protection Act of 1994 or (b) a “high cost home,”
“covered,” “high-cost,” “high-risk home,” or “predatory” loan under any other
applicable state, federal or local law;
(f) Georgia
Fair Lending Act.
No
Mortgage Loan is secured by a property in the state of Georgia and originated
between October 1, 2002 and March 7, 2003;
(g) Qualified
Mortgage Loan.
Each
Mortgage Loan is a “qualified mortgage” under Section 860G(a)(3) of the Internal
Revenue Code of 1986, as amended; and
9
(h) Credit
Reporting.
The
Assignor will cause to be fully furnished, in accordance with the Fair Credit
Reporting Act and its implementing regulations, accurate and complete
information (i.e., favorable and unfavorable) on Mortgagor credit files to
Equifax, Experian and Trans Union Credit Information Company (three of the
credit repositories), on a monthly basis; and
(i) Prepayment
Premiums.
To the
Assignor’s knowledge, with respect to any Mortgage Loan that contains a
provision permitting imposition of a Prepayment Premium prior to maturity:
(a)
prior to the Mortgage Loan’s origination, the borrower agreed to such premium in
exchange for a monetary benefit, including but not limited to a rate or fee
reduction; (b) prior to the Mortgage Loan’s origination, the borrower was
offered the option of obtaining a Mortgage Loan that did not require payment
of
such a premium; (c) the prepayment premium is adequately disclosed to the
borrower pursuant to applicable state and federal law; (d) no Mortgage Loan
originated on or after October 1, 2002 will impose a prepayment premium for
a
term in excess of three (3) years and any Mortgage Loans originated prior to
such date will not impose Prepayment Premiums in excess of five (5) years;
in
each case unless the Mortgage Loan was modified to reduce the prepayment period
to no more than three (3) years from the date of the note and the borrower
was
notified in writing of such reduction in prepayment period; and (e)
notwithstanding any state or federal law to the contrary, the Company shall
not
impose such Prepayment Premium in any instance when the Mortgage Loan is
accelerated or paid off in connection with the workout of a delinquent mortgage
or due to the borrower’s default.
6. Remedies
for Breach of Representations and Warranties of the Assignor.
With
respect to the Mortgage Loans, the Assignor hereby acknowledges and agrees
that
in the event of any breach of the representations and warranties made by the
Assignor set forth in Section 5 hereof or in Section 2 of the Representations
and Warranties Agreement, dated as of April 30, 2007, between the Assignor
and
Assignee (the “Representations
and Warranties Agreement”)
that
materially and adversely affects the value of the Mortgage Loans or the interest
of the Assignee or the Trust therein, within sixty (60) days of the earlier
of
either discovery by or notice to the Assignor of such breach of a representation
or warranty, it shall cure, purchase, cause the purchase of, or substitute
for
the applicable Mortgage Loan in the same manner and subject to the conditions
set forth in Section 3 of the Representations and Warranties
Agreement.
7. Miscellaneous.
(a) This
Agreement shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of law principles, and the obligations, rights
and remedies of the parties hereunder shall be determined in accordance with
such laws.
(b) No
term
or provision of this Agreement may be waived or modified unless such waiver
or
modification is in writing and signed by the party against whom such waiver
or
modification is sought to be enforced, with the prior written consent of the
Trustee.
10
(c) This
Agreement shall inure to the benefit of (i) the successors and assigns of the
parties hereto and (ii) the Trust (including the Trustee and the Master Servicer
acting on the Trust’s behalf). Any entity into which the Assignor, Assignee or
the Company may be merged or consolidated shall, without the requirement for
any
further writing, be deemed Assignor, Assignee or the Company, respectively,
hereunder.
(d) Each
of
this Agreement and the Servicing Agreement shall survive the conveyance of
the
Mortgage Loans to the Trust and the assignment of the purchase agreements and
the Servicing Agreement (to the extent assigned hereunder) by the Assignor
to
the Assignee and by Assignee to the Trust and nothing contained herein shall
supersede or amend the terms of the purchase agreements and the Servicing
Agreement.
(e) This
Agreement may be executed simultaneously in any number of counterparts. Each
counterpart shall be deemed to be an original and all such counterparts shall
constitute one and the same instrument.
(f) In
the
event that any provision of this Agreement conflicts with any provision of
the
purchase agreements or the Servicing Agreement with respect to the Mortgage
Loans, the terms of this Agreement shall control.
(g) Capitalized
terms used in this Agreement (including the exhibits hereto) but not defined
in
this Agreement shall have the meanings given to such terms in the purchase
agreements or the Servicing Agreement, as applicable.
8. Third
Party Beneficiary.
The
parties agree that the Trustee and Master Servicer are intended to be, and
shall
have the rights of, a third party beneficiary of this Assignment
Agreement.
[SIGNATURE
PAGE FOLLOWS]
11
IN
WITNESS WHEREOF, the parties have caused this Agreement to be executed by their
duly authorized officers as of the date first above written.
| GS MORTGAGE SECURITIES CORP. | ||
| |
|
|
| By: | /s/ Xxxxxxxx Xxxx | |
|
Name: Xxxxxxxx Xxxx |
||
| Title: Vice President | ||
| XXXXXXX XXXXX MORTGAGE COMPANY | ||
|
By:
XXXXXXX XXXXX REAL ESTATE FUNDING
CORP., its General Partner
|
||
| |
|
|
| By: | /s/ Xxxx Xxxxx | |
|
Name: Xxxx Xxxxx |
||
| Title: Vice President | ||
| AVELO MORTGAGE, L.L.C., as Servicer | ||
| |
|
|
| By: | /s/ X. Xxxxxx Xxxxxxx | |
|
Name: X. Xxxxxx Xxxxxxx |
||
|
Title:
President
|
||
EXHIBIT
A
Mortgage
Loan Schedule
[On
File
with the Securities Administrator as provided by the Depositor]
A-1
