ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT among GOLDMAN SACHS MORTGAGE COMPANY, as Assignor GS MORTGAGE SECURITIES CORP., as Assignee and INDYMAC BANK, F.S.B., as Seller and Servicer Dated as of May 1, 2007
EXECUTION
among
XXXXXXX
XXXXX MORTGAGE COMPANY,
as
Assignor
GS
MORTGAGE SECURITIES CORP.,
as
Assignee
and
INDYMAC
BANK, F.S.B.,
as
Seller and Servicer
Dated
as of
May
1, 2007
This
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment
Agreement”)
dated
as of May 1, 2007, is among IndyMac Bank, F.S.B., as servicer and seller
(the
“Seller”),
GS
Mortgage Securities Corp., as assignee (the “Assignee”)
and
Xxxxxxx Sachs Mortgage Company, as assignor (the “Assignor”).
WHEREAS,
the Assignor and the Seller have entered into an Amended and Restated Servicing
Agreement, dated as of November 1, 2005 (the “Servicing
Agreement”),
pursuant to which the Seller agreed to service for the benefit of the Assignor
certain mortgage loans listed on the mortgage loan schedule attached as an
exhibit to each Purchase Confirmation (as defined in the Sale
Agreement);
WHEREAS,
the Assignor and the Seller have entered into that certain Second Amended
and
Restated Mortgage Loan Purchase Agreement, dated as of March 1, 2006, as
amended
by Amendment No. 1, dated as of June 1, 2006 (the “Sale
Agreement”)
and
the related Trade Confirmation, dated as of February 21, 2007 (the “Trade
Confirmation”),
pursuant to which the Seller sold to the Assignor certain mortgage
loans;
WHEREAS,
the Assignee has agreed on certain terms and conditions to purchase from
the
Assignor certain of the mortgage loans (the “Mortgage
Loans”)
which
are subject to the provisions of the Servicing Agreement, the Sale Agreement
and
the Trade Confirmation and are listed on the mortgage loan schedule attached
as
Exhibit
1
hereto
(the “Mortgage
Loan Schedule”);
and
WHEREAS,
pursuant to a Master Servicing and Trust Agreement, dated as of May 1, 2007
(the
“Trust
Agreement”),
among
GS Mortgage Securities Corp., as depositor, Deutsche Bank National Trust
Company, as trustee, as trustee (the “Trustee”),
Xxxxx
Fargo Bank, N.A., as master servicer (in such capacity, the “Master
Servicer”)
and securities administrator, and each of Xxxxx Fargo Bank, N.A. and
Deutsche
Bank National Trust Company as custodians (together, the “Custodians”),
the
Assignee will transfer the Mortgage Loans to the Trustee, together with the
Assignee’s rights under the Servicing Agreement, to the extent relating to the
Mortgage Loans, and together with the Assignee’s rights under the Sale Agreement
and Section P 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:
Section
1. Assignment
and Assumption.
(a) The
Assignor hereby assigns to the Assignee all of its right, title and interest
as
Purchaser, in and to the Mortgage Loans, the Sale Agreement and all of its
rights under Section P of the Trade Confirmation, to the extent relating
to the
Mortgage Loans (other than the rights of the Assignor to indemnification
thereunder) and as Owner under the Servicing Agreement, but only to the extent
relating to the Mortgage Loans. The Assignee hereby assumes all of the
Assignor’s obligations under the Sale Agreement, the Servicing Agreement and
Section P of the Trade Confirmation, to the extent relating to the Mortgage
Loans, from and after May 1, 2007, and the Seller 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 Sale
Agreement.
(c) The
Seller and the Assignor shall have the right to amend, modify or terminate
the
Sale Agreement, the Servicing Agreement and the Trade Confirmation 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.
Section
2. Accuracy
of the Servicing Agreement, the Sale Agreement, and the Trade
Confirmation.
The
Seller 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 is in full force and effect as of the date hereof,
(iii) the Servicing Agreement has not been amended or modified in any
respect and (iv) no notice of termination has been given to the Seller
under the Servicing Agreement.
The
Seller and the Assignor represent and warrant to the Assignee that
(i) attached hereto as Exhibit
3
is a
true, accurate and complete copy of the Sale Agreement, (ii) the Sale
Agreement is in full force and effect as of the date hereof, (iii) the Sale
Agreement has not been amended or modified in any respect and (iv) no
notice of termination has been given to the Seller under the Sale
Agreement.
The
Seller and the Assignor represent and warrant to the Assignee that
(i) attached hereto as Exhibit
4
is a
true, accurate and complete copy of Section P of the Trade Confirmation,
(ii) the Trade Confirmation is in full force and effect as of the date
hereof, (iii) the Trade Confirmation has not been amended or modified in
any respect and (iv) no notice of termination has been given to the Seller
under the Trade Confirmation.
Section
3. Recognition
of Assignee.
From
and
after the date hereof, the Seller 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 pursuant to the Sale Agreement and the Servicing Agreement,
the
terms of which are incorporated herein by reference. It is the intention
of the
Assignor, Seller and Assignee that the Sale Agreement and the Servicing
Agreement shall be binding upon and inure to the benefit of the Seller and
the
Assignee and their successors and assigns.
-2-
Section
4. Representations
and Warranties of the Assignee.
The
Assignee hereby represents and warrants to the Assignor as follows:
(a) Decision
to Purchase.
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 Seller other than those contained in the Sale Agreement,
the Servicing Agreement, or this Assignment Agreement.
(b) 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 Servicing Agreement.
(c) Enforceability.
The
Assignee hereto represents and warrants that this Assign-ment 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).
Section
5. Representations
and Warranties of the Seller.
The
Seller warrants and represents to, and covenants with, the Assignor and Assignee
that:
(a) The
Seller is not a natural person or a general partnership and is duly organized,
validly existing and in good standing under the laws of the jurisdiction
of its
formation, and has all requisite power and authority to service and purchase
the
Mortgage Loans.
(b) The
Seller has full power and authority to execute, deliver and perform under
this
Assignment Agreement, and to consummate the transactions set forth herein.
The
consummation of the transactions contemplated by this Assignment Agreement
is in
the ordinary course of the Seller’s business and will not conflict with, or
result in a breach of, any of the terms, conditions or provisions of the
Seller’s charter or by-laws, or any legal restriction, or any material agreement
or instrument to which the Seller 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 Seller or its property is subject. The execution, delivery and
performance by the Seller of this Assignment Agreement, and the consummation
by
it of the transactions contemplated hereby, have been duly authorized by
all
necessary action of the Seller. This Assignment Agreement has been duly executed
and delivered by the Seller and constitutes the valid and legally binding
obligation of the Seller enforceable against the Seller in accordance with
its
respective terms except as enforceability thereof may be limited by bankruptcy,
insolvency, or reorganization or other similar laws now or hereinafter in
effect
relating to creditors’ rights generally and by general principles of equity,
regardless of whether such enforceability is considered in a proceeding in
equity or in law.
(c) No
material consent, approval, order or authorization of, or declaration, filing
or
registration with, any governmental entity is required to be obtained or
made by
the Seller in connection with the execution, delivery or performance by the
Seller of this Assignment Agreement, or the consummation by it of the
transactions contemplated hereby.
-3-
(d) As
of the
date hereof, the Seller is not in default under the Sale Agreement or the
Servicing Agreement.
(e) No
event
has occurred or has failed to occur, during the period commencing on the
date on
which the Assignor acquired the Mortgage Loans and ending on the date hereof,
inclusive, which would make the representations and warranties set forth
in
Section 2.1 of the Servicing Agreement untrue if such representations and
warranties were made effective as of the date hereof.
Section
6. 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 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 Sale
Agreement, the Servicing Agreement 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 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 deter-mined 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.
-4-
(f) Prior
Assignments; Pledges.
As of
May 24, 2007, 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.
As of
May 24, 2007, 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.
As of
May 24, 2007, 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) No
High Cost or Covered Loans.
As of
May 24, 2007, 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. In addition, no Mortgage Loan is a “high-cost,” “high-cost home,”
“covered,” “high-risk home,” or “predatory” 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), 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.
Nothing
has occurred or failed to occur from and after the applicable closing date
set
forth in the Sale Agreement to May 24, 2007 that would cause any of the
representations and warranties relating to the Mortgage Loans set forth in
Section 3.02 of the Sale 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 Collateral File to the
applicable 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 7 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 6.
It is
further understood and agreed that the Assignor shall be deemed not to have
made
the representations and warranties in Section 6(k) with respect to, and to
the
extent of, representations and warranties made, as to the matters covered
in
Section 6(k), by the Seller in the Sale 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 6,
and no
other affiliate of the Assignor has made any representations or warranties
of
any kind to the Assignee.
Section
7. 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 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 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 Sale Agreement), such cure or repurchase must take place
within 60 days of discovery of such Qualification Defect.
In
the
event the Seller has breached a representation or warranty with respect to
a
Mortgage Loan under the Sale Agreement that is substantially identical to
a
representation or warranty breached by the Assignor hereunder, the Assignee
shall first proceed against the Seller. If the Seller does not within 60
days
after notification of the breach, take steps to cure such breach (which may
include certifying to progress made and requesting an extension of the time
to
cure such breach, to the extent permitted under the Sale Agreement) or
repurchase the affected Mortgage Loan, the Assignee shall be entitled to
enforce
the obligations of the Assignor hereunder to cure such breach or to repurchase
the Mortgage Loan from the Trust at the Purchase Price (each as defined in
the
Trust Agreement). In such event, the Assignor shall succeed to the rights
of the
Assignee to enforce the obligations of the Seller to cure such breach or
repurchase such Mortgage Loan under the terms of the Sale
Agreement.
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 Collateral File
and
shall assign to the Assignor all of the Assignee’s rights under the Sale
Agreement and the applicable Servicing Agreement, but only insofar as the
Sale
Agreement and Servicing Agreement relate to such Mortgage Loan.
-6-
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.
Section
8. Amendment
to Servicing Agreement
In
connection with the transfer of the Mortgage Loans hereunder, the Servicer
agrees that, from and after the date hereof, each Mortgage Loan transferred
hereunder will be subject to the Servicing Agreement, provided that,
solely with respect to the Mortgage Loans transferred hereunder, the following
modifications shall be made:
(a) Section
8.2(a) of the Servicing Agreement shall be amended to replace the language
in
the first sentence thereof with the following:
“Upon
written notice, the Owner may, at its sole option, upon the occurrence of
an
Event of Default and in accordance with Section 7.1, terminate any rights
the
Servicer may have hereunder.”
(b)
Sections 5.4 and 5.5 shall be deleted and replaced with:
[RESERVED]
(c)
Sections 10.4 and 10.5(a) shall be amended by replacing the phrase “commencing
in 2007” with the phrase “commencing in 2008”.
For
the avoidance of doubt, the Servicing Agreement is not hereby amended with
respect to any other mortgage loans sold thereunder and shall remain in full
force and effect in accordance with its terms with respect to such other
mortgage loans.
Section
9. Continuing
Effect.
Except
as
contemplated hereby, the Servicing Agreement shall remain in full force and
effect in accordance with their respective terms.
Section
10. 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.
-7-
Section
11. 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 when delivered as set forth below:
|
(i)
|
in
the case of the Seller,
|
IndyMac
Bank, F.S.B.
0000
Xxxx
Xxxxxxxx Xxxxxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000
Attention: Secondary
Marketing
or
such
other address as may hereafter be furnished by the Seller,
|
(ii)
|
in
the case of the Assignee,
|
GS
Mortgage Securities Corp.
000
Xxxxxx Xxxxxx Xxxxx
Xxxxx
000
Xxxxx
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx
Xxxxx
Tel.: (000)
000-0000
Fax: (000)
000-0000
With
a
copy to:
GS
Mortgage Securities Corp.
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxxxxxx
House
Tel.: (000)
000-0000
Fax: (000)
000-0000
or
such
other address as may hereafter be furnished by the Assignee, and
|
(iii)
|
in
the case of the Assignor,
|
Xxxxxxx
Xxxxx Mortgage Company
000
Xxxxxx Xxxxxx Xxxxx, Xxxxx 000 Xxxxx
Xx.
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx
Xxxxx
Tel.: (000)
000-0000
Fax: (000)
000-0000
-8-
With
a
copy to:
Xxxxxxx
Xxxxx Mortgage Company
00
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention: Xxxxx
Xxxxxxxx
Tel.: (000)
000-0000
Fax: (000)
000-0000
or
such
other address as may hereafter be furnished by the Assignor.
Section
12. Counterparts.
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.
Section
13. Definitions.
Any
capitalized term used but not defined in this Assignment Agreement has the
meaning assigned thereto in the Servicing Agreement.
Section
14. Third
Party Beneficiary.
The
Master Servicer shall be considered a Third-Party Beneficiary to this Assignment
entitled to all rights and benefits hereof as if it were a direct party to
this
Assignment.
-9-
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
the
day and year first above written.
ASSIGNEE:
GS
MORTGAGE SECURITIES CORP.
By:
/s/ Xxxxxxxx Xxxx
Name:
Xxxxxxxx Xxxx
Title:
Vice President
ASSIGNOR:
XXXXXXX
XXXXX MORTGAGE COMPANY
By:
Xxxxxxx
Sachs Real Estate Funding Corp., its
General Partner
By:
/s/ Xxxx X. Xxxxx
Name:
Xxxx X. Xxxxx
Title:
Managing Director
SELLER
AND SERVICER:
INDYMAC
BANK, F.S.B.
By:
/s/ Xxxx Xxxxxxxx
Name:
Xxxx Xxxxxxxx
Title:
Vice President
EXHIBIT
1
Mortgage
Loan Schedule
1
EXHIBIT
2
Servicing
Agreement
2
EXHIBIT
3
Sale
Agreement
3
EXHIBIT
4
Section
P of the Trade Confirmation
P. Early
Payment Default:
In
the
event that the first scheduled payment of principal and interest (or interest
in
the case of an interest only loan) to be made by the mortgagor on the first
due
date after the Closing Date, in addition to any schedule payment due prior
to
the Closing Date, with respect to any Mortgage Loan is not paid within one
(1)
month following such due date, the Seller shall repurchase such Mortgage
Loan
within thirty (30) days of the Purchaser’s request at a price equal to the
Repurchase Price. The Purchaser shall request any repurchase pursuant to
this
paragraph on or before the thirtieth (30th)
day
from the date that the Purchaser receives notice of the related early payment
default (which notice may include receipt of a monthly remittance advice
reflecting such early payment default).
4
