ASSET-BACKED CERTIFICATES SERIES 2007-4 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 Servicer Dated as of March 29, 2007
Execution
Copy
ASSET-BACKED
CERTIFICATES
SERIES
2007-4
among
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE COMPANY,
as
Assignor
GS
MORTGAGE SECURITIES CORP.,
as
Assignee
and
INDYMAC
BANK, F.S.B.,
as
Servicer
Dated
as of
March
29, 2007
ASSIGNMENT,
ASSUMPTION AND RECOGNITION AGREEMENT (this “Assignment
Agreement”)
made
this 29th day of March, 2007, among IndyMac Bank, F.S.B., (“IndyMac”
or
the
“Servicer”),
GS
Mortgage Securities Corp., as assignee (the “Assignee”)
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, as assignor (the “Assignor”).
WHEREAS,
the Assignor and the Servicer have entered into (i) the Amended and Restated
Servicing Agreement, dated as of November 1, 2005 (the “Servicing
Agreement”),
and
(ii) the Second Amended and Restated Master Mortgage Loan Purchase Agreement,
dated as of March 1, 2006, as amended by that certain Amendment No. 1 dated
as
of June 1, 2006 (as amended, the “Sale
Agreement”),
pursuant to which the Servicer sold to the Assignor certain mortgage loans
listed on the mortgage loan schedule attached as an exhibit to the Servicing
Agreement;
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 and Sale Agreement
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 March 1, 2007
(the “Trust
Agreement”),
among
GS Mortgage Securities Corp., as depositor, Deutsche Bank National Trust
Company, as trustee (in such capacity, the “Trustee”)
and as
a custodian, U.S. Bank National Association, as a custodian, The Bank of New
York Trust Company, National Association, as a custodian and ▇▇▇▇▇ Fargo Bank,
National Association, as master servicer (in such capacity, the “Master
Servicer”),
securities administrator and as a custodian, 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 (other than
the rights of the Assignor (and if applicable its affiliates, officers,
directors and agents) 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. 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 Servicing Agreement
and the Sale Agreement, to the extent relating to the Mortgage Loans (other
than
the rights of the Assignor (and if applicable its affiliates, officers,
directors and agents) to indemnification thereunder), and the Assignee hereby
assumes all of the Assignor’s obligations under the Servicing Agreement and the
Sale Agreement, to the extent relating to the Mortgage Loans, from and after
the
date hereof, 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 and the Sale Agreement from and after the date hereof,
to
the extent relating to the Mortgage Loans.
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(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 respective dates of the Servicing
Agreement and the Sale Agreement.
(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.
2. Modification
of the Sale Agreement.
Only in
so far as it relates to the Mortgage Loans, the Servicer and the Assignor hereby
amend the Sale Agreement as follows:
(a) The
definition of “Repurchase Price” in Article I shall be amended by deleting the
definition in its entirety and replacing it with the following:
Repurchase
Price:
With
respect to any Mortgage Loan, a price equal to (i) the Stated Principal Balance
of the Mortgage Loan as of the date of repurchase plus (ii) interest on such
Stated Principal Balance at the Mortgage Loan Remittance Rate from the last
date
through which interest has been paid and distributed to the Purchaser to the
last day of the month in which the repurchase occurs, less amounts received
or
advanced in respect of such repurchased Mortgage Loan which such amounts are
being held in the Custodial Account for distribution in the month of repurchase
plus (iii) with respect to any Mortgage Loan included in a Securitization
Transaction, damages incurred by the Purchaser or its assignee including the
trust in any securitization in connection with any violation by such Mortgage
Loan of any predatory or abusive lending law.
(b) The
definition of “Remittance Date” in Article I shall be amended by deleting the
definition in its entirety and replacing it with the following:
“With
respect to each Mortgage Loan: the eighteenth (18th)
day of
any month, beginning with the eighteenth (18th)
day of
the month next following the month in which the related Cut-off Date occurs,
or
if such eighteenth (18th)
day is
not a Business Day, the immediately preceding Business Day.”
(c) a
new
section, Section 8, will be added immediately following Subsection 7.04 which
shall read as follows:
“SECTION
8. Third-Party
Beneficiary.
▇▇▇▇▇
Fargo Bank, National Association, as master servicer, securities administrator
and as a custodian under the Master Servicing and Trust Agreement, dated as
of
March 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 ▇▇▇▇▇ Fargo Bank, National Association, 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.”
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3. Modification
of the Servicing Agreement.
Only in
so far as it relates to the Mortgage Loans, the Servicer and the Assignor hereby
amend the Servicing Agreement as follows:
(a) The
definition of “Remittance Date” in Article I shall be amended by deleting the
definition in its entirety and replacing it with the following:
“With
respect to each Mortgage Loan: the eighteenth (18th)
day of
any month, beginning with the eighteenth (18th)
day of
the month next following the month in which the related Cut-off Date occurs,
or
if such eighteenth (18th)
day is
not a Business Day, the immediately preceding Business Day.”
(b) a
new
section, Section 11, will be added immediately following Subsection 10.07 which
shall read as follows:
“SECTION
11. Third
Party Beneficiary.
▇▇▇▇▇
Fargo Bank, National Association, as master servicer, securities administrator
and as a custodian under the Master Servicing and Trust Agreement, dated as
of
March 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 ▇▇▇▇▇ Fargo Bank, National Association, 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.”
(c) the
definition of “Business Day” in Section 1 shall be amended by deleting the
definition in its entirety and replacing it with the following:
“Business
Day: Any day other than (i) a Saturday or Sunday, or (ii) a day on which banking
or savings and loan institutions in the States of California, Maryland,
Minnesota or New York are authorized or obligated by law or executive order
to
be closed.”
(d) The
second paragraph of Section 3.13(c) shall be deleted in its entirety and
replaced with:
“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 three years after
title has been taken to such REO Property, not later than the end of the third
taxable year after the year of its acquisition unless (i) (A) 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. If a period longer
than three years is permitted under the foregoing sentence and is necessary
to
sell any REO Property, (i) the Servicer shall report monthly to the Owner as
to
the progress being made in selling such REO Property, (ii) the Servicer shall
obtain an extension from the Internal Revenue Service and (iii) if, with the
written consent of the Owner, a purchase money mortgage is taken in connection
with such sale, such purchase money mortgage shall name the Servicer as
mortgagee, and such purchase money mortgage shall not be held pursuant to this
Agreement, but instead a separate participation agreement among the Servicer
and
Owner shall be entered into with respect to such purchase money
mortgage.”
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(e) Section
4.1(b) shall be amended by deleting it in its entirety and replacing it with
the
following:
With
respect to any remittance to the Owner made by the Servicer after the date
such
remittance was due, the Servicer shall pay to the Owner interest on such late
remittance at an annual rate equal to Prime plus two percent (2.0%), 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 remittance is made and shall cover the period commencing with the day
immediately following the Remittance Date and ending with the Business Day
on
which such late remittance is made, both inclusive. Such interest shall be
remitted along with such late remittance. 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.
(f) Section
6.1 shall be amended by deleting the first paragraph of Section 6.1 and
replacing it with the following:
“Subject
to Section 6.3, the Servicer agrees to indemnify and hold harmless the Owner
or
Master Servicer, as applicable, against any and all Losses that the Owner or
Master Servicer may sustain in any way related to the failure of such Servicer
to service the Mortgage Loans in compliance with the terms of this Agreement;
provided,
however,
the
Servicer shall not be liable hereunder (a) to the extent such Losses directly
result from the Custodian’s negligent action, negligent failure to act, bad
faith, willful misconduct or breach under the Custodial Agreement, dated as
of
February 1, 2004, among the Owner and the Custodian, (b) with respect to any
action or inaction in accordance with the direction or consent of the Owner
or
(c) resulting from the Owner’s failure to respond to a request by the Servicer
for direction or consent in accordance with Section 3.1(c) hereof. The Servicer
shall immediately notify the Owner and the Master Servicer, if a claim is made
by a third party with respect to this Agreement or the Mortgage Loans. The
Servicer shall assume (with the written notification to the Owner or Master
Servicer, as applicable) the defense of any such claim and pay all reasonable
expenses in connection therewith, including counsel fees, and promptly pay,
discharge and satisfy any judgment or decree which may be entered against the
Servicer, the Owner or the Master Servicer, subject to limitation pursuant
to
this Section 6.1, in respect of such claim. The Servicer shall follow any
written instructions received from the Owner or the Master Servicer, as
applicable, in connection with any such claim and the Owner or the Master
Servicer, as applicable, shall promptly reimburse the Servicer for all amounts
reasonably advanced by it pursuant to the preceding sentence, except when the
claim (a) is related to the Servicer’s obligations to indemnify the Owner or
Master Servicer pursuant hereto, (b) results from the failure of the Servicer
to
service the Mortgage Loans in compliance with the terms of this Agreement or
(c)
results from the Servicer’s willful misconduct, bad faith or negligence in
performing its duties under this Agreement.”
(g) Section
7.1 shall be amended as follows:
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(i) Subsection
(ii) of Section 7.1 shall be deleted in its entirety and replaced with the
following:
“failure
by the Servicer duly to observe or perform in any material respect any of
the
covenants or agreements on the part of the Servicer set forth in this Agreement
(other than those listed in subsection (i) and subsection (x) of this Section
7.1) which continues unremedied for a period of 30 days after the date on
which
written notice of such failure, requiring the same to be remedied, shall
have
been given to the Servicer by the Owner or by the Custodian; or”;
and
(ii) A
new
subsection (x) shall be added immediately following subsection (ix) which shall
be as follows:
“there
shall be no cure period for failure by the Servicer duly to observe or perform
in any material respect any of the covenants or agreements on the part of the
Servicer set forth in Section 5.4 of this Agreement.”
(h) Section
9.1(b) shall be deleted in its entirety and replaced with the
following:
“The
Servicer shall deliver to the successor (i) the funds in the Custodial Account
and the Escrow Account to which the Owner is entitled pursuant to the terms
of
this Agreement, (ii) all other funds to which the Owner is entitled pursuant
to
the terms of this Agreement net of any unreimbursed Advances and (iii) all
other
amounts which may thereafter be received with respect to the Mortgage Loans
and
to which the Servicer is not entitled pursuant to the terms of this Agreement
within two Business Days of receiving notice of the appointment of such
successor servicer. The Servicer shall deliver all Collateral Files and
Servicing Files and related documents and statements held by it hereunder within
thirty calendar days of receiving notice of the appointment of a successor
servicer. The Servicer shall account for all funds and shall execute and deliver
such instruments and do such other things as may reasonably be required to
more
fully and definitively vest in the successor all such rights, powers, duties,
responsibilities, obligations and liabilities of the Servicer.”
(l) Exhibit
E
shall be deleted in its entirety and be replaced with a new “Exhibit E” which
shall be as set forth in Exhibit
4
attached
to this Assignment Agreement.
4. Accuracy
of the Servicing Agreement and the Sale 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) attached
hereto as Exhibit
3
is a
true, accurate and complete copy of the Sale Agreement, (iii) each of the
Servicing Agreement and the Sale Agreement is in full force and effect as of
the
date hereof, (iv) except as provided in Section 2 above, each of the Servicing
Agreement and the Sale Agreement has not been amended or modified in any respect
and (v) no notice of termination has been given to the Servicer under the
Servicing Agreement or the Sale Agreement. The Servicer, in its capacity as
seller and/or servicer under each of the Servicing Agreement and the Sale
Agreement, further represents and warrants that the representations and
warranties contained in Section 2.1 of the Servicing Agreement are true and
correct as of the Closing Date (as such term is defined in the Servicing
Agreement) and the representations and warranties regarding the Mortgage Loans
contained in Section 3.02 of the Sale Agreement were true and correct as of
the
Closing Date (as such term is defined in the Sale Agreement).
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5. Recognition
of Assignee.
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 to the
contrary, shall service all of the Mortgage Loans for the benefit of the
Assignee pursuant to the Servicing Agreement the terms of which are incorporated
herein by reference. It is the intention of the Assignor, Servicer and Assignee
that the Servicing Agreement shall be binding upon and inure to the benefit
of
the Servicer and the Assignee and their successors and assigns.
6. 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 Servicer other than those contained in the Servicing
Agreement, the Sale 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 and the Sale Agreement.
(c) 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).
7. 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 limited
partnership in good standing under the laws of the State of New York with full
power and authority (corporate and other) to enter into and perform its
obligations under the Servicing Agreement, the Sale 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.
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(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.
8. Additional
Representations and Warranties of the Assignor With Respect to the Mortgage
Loans.
The
Assignor hereby represents and warrants to the Assignee as follows:
(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) 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.
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(d) High
Cost.
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.
(e) 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.
(f) 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.
(g) Bring
Down.
To the
Assignor’s knowledge, with respect to each Mortgage Loan, no event has occurred
from and after the closing date set forth in such Sale Agreement to the date
hereof that would cause any of the representations and warranties relating
to
such Mortgage Loan set forth in Section 3.02 of the Sale Agreement to be
untrue in any material respect as of the date hereof as if made on the date
hereof. With respect to those representations and warranties which are made
to
the best of the Assignor's knowledge, if it is discovered by the Assignor that
the substance of such representation and warranty is inaccurate, notwithstanding
the Assignor's lack of knowledge with respect to the substance of such
representation and warranty, such inaccuracy shall be deemed a breach of the
applicable representation and warranty.
It
is
understood and agreed that the representations and warranties set forth in
Sections 7 and 8 shall survive delivery of the respective mortgage loan
documents to the Assignee or its designee 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 10 to repurchase or, in
limited circumstances, substitute 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 Sections 7 and 8. It is further
understood and agreed that, except as specifically set forth in Sections 7
and
8, the Assignor shall be deemed not to have made the representations and
warranties in Section 8(g) with respect to, and to the extent of,
representations and warranties made, as to the matters covered in Section 8(g),
by the Servicer in the Sale Agreement (or any officer’s certificate delivered
pursuant thereto).
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It
is
understood and agreed that, with respect to the Mortgage Loans, the Assignor
has
made no representations or warranties to the Assignee other than those contained
in Sections 7 and 8, and no other affiliate of the Assignor has made any
representations or warranties of any kind to the Assignee.
9. Representations
and Warranties of the Servicer.
The
Servicer hereby represents and warrants to the Assignee that, to the extent
the
Mortgage Loans will be part of a REMIC, the Servicer 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) 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).
10. Repurchase
of Mortgage Loans.
(a) To
the extent that IndyMac is required under the Sale Agreement or any related
agreement to which IndyMac and Assignor are parties to repurchase any Mortgage
Loan on account of an Early Payment Default, the Assignee shall be entitled
as a
result of the assignments hereunder to enforce such obligation directly against
IndyMac as required by and in accordance with the Sale Agreement or such related
agreement, as applicable. For purposes of this Section, “Early Payment Default”
shall mean any provision of the Sale Agreement or any related agreement to
which
IndyMac and Assignor are parties that is designated as an “early payment
default” provision of otherwise provides for the repurchase of any Mortgage Loan
in the event of a default in the first (or such other number as may be specified
in such provision) scheduled payment due under such Mortgage Loan after the
closing or other date specified in such agreement.
(b) 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 sixty (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 at the Repurchase Price as defined in
the
Sale Agreement or, in limited circumstances (as set forth below), substitute
such mortgage loan for a Substitute Mortgage Loan (as defined below).
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
sixty (60) days of discovery of such Qualification Defect.
The
Assignor shall have the option, but is not obligated, to substitute a Substitute
Mortgage Loan for a Mortgage Loan, rather than repurchase the Mortgage Loan
as
provided above, by removing such Mortgage Loan and substituting in its place
a
Substitute Mortgage Loan or Loans and providing the Substitution Adjustment
Amount, if any, provided that any such substitution shall be effected not later
than ninety (90) days from the date on which it is notified of the
breach.
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In
the
event the Servicer has breached a representation or warranty under the Sale
Agreement that is substantially identical to, or covers the same matters as,
a
representation or warranty breached by the Assignor hereunder, the Assignee
shall first proceed against the Servicer to cure such breach or purchase such
mortgage loan from the Trust. If the Servicer does not within ninety (90) 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, as permitted under the Sale Agreement) or purchase the
Mortgage Loan, the Trustee shall be entitled to enforce the obligations of
the
Assignor hereunder to cure such breach or to purchase or substitute for the
Mortgage Loan from the Trust.
In
addition, the Assignor shall have the option, but is not obligated, to
substitute a Substitute Mortgage Loan for a Mortgage Loan with respect to which
the Servicer has breached a representation and warranty and is obligated to
repurchase such Mortgage Loan under the Sale Agreement, by removing such
Mortgage Loan and substituting in its place a Substitute Mortgage Loan or Loans,
provided that any such substitution shall be effected not later than ninety
(90)
days from the date on which it is notified of the breach.
In
the
event of any repurchase or substitution of any Mortgage Loan by the Assignor
hereunder, the Assignor shall succeed to the rights of the Assignee to enforce
the obligations of the Servicer to cure any breach or repurchase such Mortgage
Loan under the terms of the Sale Agreement with respect to such Mortgage Loan.
In the event of a repurchase or substitution 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 each of the Servicing Agreement and the Sale Agreement, but only
insofar as each such agreement relates to such Mortgage Loan.
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.
For
purposes of this Section, “Deleted Mortgage Loan” and “Substitute Mortgage Loan”
shall be defined as set forth below.
“Deleted
Mortgage Loan” A Mortgage Loan which is to be, pursuant to this Section 10,
replaced or to be replaced by the Assignor with a Substitute Mortgage
Loan.
“Substitute
Mortgage Loan” A Mortgage Loan substituted by the Assignor for a Deleted
Mortgage Loan which must, on the date of such substitution, (i) have an
outstanding principal balance, after deduction of all scheduled payments due
in
the month of substitution (or in the case of a substitution of more than one
Mortgage Loan for a Deleted Mortgage Loan, an aggregate principal balance),
not
in excess of the Stated Principal Balance of the Deleted Mortgage Loan; (ii)
be
accruing interest at a rate no lower than and not more than 2% per annum higher
than that of the Deleted Mortgage Loan; (iii) have a remaining term to maturity
not greater than and not more than one year less than that of the Deleted
Mortgage Loan; (iv) be of the same type as the Deleted Mortgage Loan (i.e.,
fixed-rate or adjustable-rate with same periodic rate cap, lifetime rate cap,
and index); and (v) comply with each representation and warranty set forth
in
Section 3.02 of the Sale Agreement.
11
“Substitution
Adjustment Amount” means with respect to any Mortgage Loan, the amount remitted
by GSMC on the applicable Distribution Date which is the difference between
the
outstanding principal balance of a Substitute Mortgage Loan as of the date
of
substitution and the outstanding principal balance of the Deleted Mortgage
Loan
as of the date of substitution.
11. Continuing
Effect.
Except
as contemplated hereby, the Servicing Agreement and the Sale Agreement shall
remain in full force and effect in accordance with their respective
terms.
12. Governing
Law.
THIS
ASSIGNMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (WITHOUT
REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF).
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.
13. Notices.
Any
notices or other communications permitted or required hereunder or under the
Servicing Agreement or the Sale 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
telex, telegraph or telecopier and confirmed by a similar mailed writing,
to:
(a) in
the
case of the Servicer,
IndyMac
Bank, F.S.B.
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Pasadena,
California 91107
Attn:
▇▇▇▇ ▇▇▇▇▇▇▇▇
or
such
other address as may hereafter be furnished by the Servicer;
12
(b) in
the
case of the Assignee,
GS
Mortgage Securities Corp.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
With
a
copy to:
GS
Mortgage Securities Corp.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished by the Assignee, and
(c) in
the
case of the Assignor,
▇▇▇▇▇▇▇
▇▇▇▇▇ Mortgage Company
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
New
York,
New York 10004
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel.:
(▇▇▇) ▇▇▇-▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
or
such
other address as may hereafter be furnished by the Assignor.
14. 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.
15. Definitions.
Any
capitalized term used but not defined in this Assignment Agreement has the
meaning assigned thereto in the Servicing Agreement or the Sale Agreement,
as
applicable.
16. 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.
[SIGNATURES
FOLLOW]
13
IN
WITNESS WHEREOF, the parties hereto have executed this Assignment Agreement
the
day and year first above written.
|
▇▇▇▇▇▇▇
▇▇▇▇▇ MORTGAGE
COMPANY
|
||
|
By:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Real Estate Funding
Corp.,
its General Partner
|
||
| |
|
|
| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇ | |
|
Name:
▇▇▇▇▇▇▇ ▇▇▇▇
Title:
Vice President
|
||
|
GS
MORTGAGE SECURITIES CORP.
|
||
| |
|
|
| By: | /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ | |
|
Name:
▇▇▇▇ ▇. ▇▇▇▇▇
Title:
Vice President
|
||
|
INDYMAC
BANK, F.S.B.
|
||
| |
|
|
| By: | /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
|
Name:
▇▇▇▇ ▇▇▇▇▇▇▇▇
Title:
Vice President
|
||
EXHIBIT
1
Mortgage
Loan Schedule
[On
File
with the Securities Administrator as provided by the Depositor]
EXHIBIT
2
Servicing
Agreement
[On
File
with the Depositor]
2-1
EXHIBIT
3
Sale
Agreement
[On
File
with the Depositor]
4-2
EXHIBIT
4
Exhibit
E to the Servicing Agreement
EXHIBIT
E
SERVICING
CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The
assessment of compliance to be delivered by IndyMac Bank, F.S.B. shall address,
at a minimum, the criteria identified as below as “Applicable Servicing
Criteria”:
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|||
|
Reference
|
Criteria
|
|||
|
General
Servicing Considerations
|
||||
|
1122(d)(1)(i)
|
Policies
and procedures are instituted to monitor any performance or other
triggers
and events of default in accordance with the transaction
agreements.
|
X
|
||
|
1122(d)(1)(ii)
|
If
any material servicing activities are outsourced to third parties,
policies and procedures are instituted to monitor the third party’s
performance and compliance with such servicing activities.
|
X
|
||
|
1122(d)(1)(iii)
|
Any
requirements in the transaction agreements to maintain a back-up
servicer
for the mortgage loans are maintained.
|
|||
|
1122(d)(1)(iv)
|
A
fidelity bond and errors and omissions policy is in effect on the
party
participating in the servicing function throughout the reporting
period in
the amount of coverage required by and otherwise in accordance with
the
terms of the transaction agreements.
|
X
|
||
|
Cash
Collection and Administration
|
||||
|
1122(d)(2)(i)
|
Payments
on mortgage loans are deposited into the appropriate custodial bank
accounts and related bank clearing accounts no more than two business
days
following receipt, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(ii)
|
Disbursements
made via wire transfer on behalf of an obligor or to an investor
are made
only by authorized personnel.
|
X
|
3
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|||
|
Reference
|
Criteria
|
|||
|
1122(d)(2)(iii)
|
Advances
of funds or guarantees regarding collections, cash flows or distributions,
and any interest or other fees charged for such advances, are made,
reviewed and approved as specified in the transaction
agreements.
|
X
|
||
|
1122(d)(2)(iv)
|
The
related accounts for the transaction, such as cash reserve accounts
or
accounts established as a form of overcollateralization, are separately
maintained (e.g., with respect to commingling of cash) as set forth
in the
transaction agreements.
|
X
|
||
|
1122(d)(2)(v)
|
Each
custodial account is maintained at a federally insured depository
institution as set forth in the transaction agreements. For purposes
of
this criterion, “federally insured depository institution” with respect to
a foreign financial institution means a foreign financial institution
that
meets the requirements of Rule 13k-1(b)(1) of the Securities Exchange
Act.
|
X
|
||
|
1122(d)(2)(vi)
|
Unissued
checks are safeguarded so as to prevent unauthorized
access.
|
X
|
||
|
1122(d)(2)(vii)
|
Reconciliations
are prepared on a monthly basis for all asset-backed securities related
bank accounts, including custodial accounts and related bank clearing
accounts. These reconciliations are (A) mathematically accurate;
(B)
prepared within 30 calendar days after the bank statement cutoff
date, or
such other number of days specified in the transaction agreements;
(C)
reviewed and approved by someone other than the person who prepared
the
reconciliation; and (D) contain explanations for reconciling items.
These
reconciling items are resolved within 90 calendar days of their original
identification, or such other number of days specified in the transaction
agreements.
|
X
|
||
|
Investor
Remittances and Reporting
|
||||
|
1122(d)(3)(i)
|
Reports
to investors, including those to be filed with the Commission, are
maintained in accordance with the transaction agreements and applicable
Commission requirements. Specifically, such reports (A) are prepared
in
accordance with timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance with
the
terms specified in the transaction agreements; (C) are filed with
the
Commission as required by its rules and regulations; and (D) agree
with
investors’ or the trustee’s records as to the total unpaid principal
balance and number of mortgage loans serviced by the
Servicer.
|
X
|
4
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|||
|
Reference
|
Criteria
|
|
1122(d)(3)(ii)
|
Amounts
due to investors are allocated and remitted in accordance with timeframes,
distribution priority and other terms set forth in the transaction
agreements.
|
X
|
||
|
1122(d)(3)(iii)
|
Disbursements
made to an investor are posted within two business days to the Servicer’s
investor records, or such other number of days specified in the
transaction agreements.
|
X
|
||
|
1122(d)(3)(iv)
|
Amounts
remitted to investors per the investor reports agree with cancelled
checks, or other form of payment, or custodial bank
statements.
|
X
|
||
|
Pool
Asset Administration
|
||||
|
1122(d)(4)(i)
|
Collateral
or security on mortgage loans is maintained as required by the transaction
agreements or related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(ii)
|
Mortgage
loan and related documents are safeguarded as required by the transaction
agreements
|
X
|
||
|
1122(d)(4)(iii)
|
Any
additions, removals or substitutions to the asset pool are made,
reviewed
and approved in accordance with any conditions or requirements in
the
transaction agreements.
|
X
|
||
|
1122(d)(4)(iv)
|
Payments
on mortgage loans, including any payoffs, made in accordance with
the
related mortgage loan documents are posted to the Servicer’s obligor
records maintained no more than two business days after receipt,
or such
other number of days specified in the transaction agreements, and
allocated to principal, interest or other items (e.g., escrow) in
accordance with the related mortgage loan documents.
|
X
|
||
|
1122(d)(4)(v)
|
The
Servicer’s records regarding the mortgage loans agree with the Servicer’s
records with respect to an obligor’s unpaid principal
balance.
|
X
|
||
|
1122(d)(4)(vi)
|
Changes
with respect to the terms or status of an obligor’s mortgage loans (e.g.,
loan modifications or re-agings) are made, reviewed and approved
by
authorized personnel in accordance with the transaction agreements
and
related pool asset documents.
|
X
|
5
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|||
|
Reference
|
Criteria
|
|||
|
1122(d)(4)(vii)
|
Loss
mitigation or recovery actions (e.g., forbearance plans, modifications
and
deeds in lieu of foreclosure, foreclosures and repossessions, as
applicable) are initiated, conducted and concluded in accordance
with the
timeframes or other requirements established by the transaction
agreements.
|
X
|
||
|
1122(d)(4)(viii)
|
Records
documenting collection efforts are maintained during the period a
mortgage
loan is delinquent in accordance with the transaction agreements.
Such
records are maintained on at least a monthly basis, or such other
period
specified in the transaction agreements, and describe the entity’s
activities in monitoring delinquent mortgage loans including, for
example,
phone calls, letters and payment rescheduling plans in cases where
delinquency is deemed temporary (e.g., illness or
unemployment).
|
X
|
||
|
1122(d)(4)(ix)
|
Adjustments
to interest rates or rates of return for mortgage loans with variable
rates are computed based on the related mortgage loan
documents.
|
X
|
||
|
1122(d)(4)(x)
|
Regarding
any funds held in trust for an obligor (such as escrow accounts):
(A) such
funds are analyzed, in accordance with the obligor’s mortgage loan
documents, on at least an annual basis, or such other period specified
in
the transaction agreements; (B) interest on such funds is paid, or
credited, to obligors in accordance with applicable mortgage loan
documents and state laws; and (C) such funds are returned to the
obligor
within 30 calendar days of full repayment of the related mortgage
loans,
or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xi)
|
Payments
made on behalf of an obligor (such as tax or insurance payments)
are made
on or before the related penalty or expiration dates, as indicated
on the
appropriate bills or notices for such payments, provided that such
support
has been received by the servicer at least 30 calendar days prior
to these
dates, or such other number of days specified in the transaction
agreements.
|
X
|
||
|
1122(d)(4)(xii)
|
Any
late payment penalties in connection with any payment to be made
on behalf
of an obligor are paid from the servicer’s funds and not charged to the
obligor, unless the late payment was due to the obligor’s error or
omission.
|
X
|
6
|
Servicing
Criteria
|
Applicable
Servicing
Criteria
|
|||
|
Reference
|
Criteria
|
|
1122(d)(4)(xiii)
|
Disbursements
made on behalf of an obligor are posted within two business days
to the
obligor’s records maintained by the servicer, or such other number of days
specified in the transaction agreements.
|
X
|
||
|
1122(d)(4)(xiv)
|
Delinquencies,
charge-offs and uncollectible accounts are recognized and recorded
in
accordance with the transaction agreements.
|
X
|
||
|
1122(d)(4)(xv)
|
Any
external enhancement or other support, identified in Item 1114(a)(1)
through (3) or Item 1115 of Regulation AB, is maintained as set forth
in
the transaction agreements.
|
|
[NAME
OF INTERIM
SERVICER]
[SUBSERVICER]
|
||
|
Date:
|
||
By:
Name:
Title
7