EXECUTION COPY
EXHIBIT 99.11
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GSAA HOME EQUITY TRUST 2007-3
ASSET-BACKED CERTIFICATES
SERIES 2007-3
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
and
INDYMAC BANK, F.S.B.,
as Servicer
Dated as of
February 23, 2007
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment
Agreement") made this 23rd day of February, 2007, among IndyMac Bank, F.S.B.,
("IndyMac" or the "Servicer"), GS Mortgage Securities Corp., as assignee (the
"Assignee") and Xxxxxxx Sachs 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
February 1, 2007 (the "Trust Agreement"), among GS Mortgage Securities Corp.,
as depositor, U.S. Bank National Association, as trustee (in such capacity,
the "Trustee") and as a custodian, Deutsche Bank National Trust Company, as a
custodian, The Bank of New York Trust Company, National Association, as a
custodian and Xxxxx Fargo Bank, National Association, as master servicer (in
such capacity, the "Master Servicer") and securities administrator, 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.
IndyMac Step 1 AAR
(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.
Xxxxx Fargo Bank, National Association, as master servicer and
securities administrator under the Master Servicing and Trust Agreement, dated
as of February 1, 2007, among GS Mortgage Securities Corp., as depositor, U.S.
Bank National Association, as trustee and as a custodian, Deutsche Bank
National Trust Company, as a custodian, The Bank of New York Trust Company,
National Association, as a custodian and Xxxxx 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.
Xxxxx Fargo Bank, National Association, as master servicer and
securities administrator under the Master Servicing and Trust Agreement, dated
as of February 1, 2007, among GS Mortgage Securities Corp., as depositor, U.S.
Bank National Association, as trustee and as a custodian, Deutsche Bank
National Trust Company, as a custodian, The Bank of New York Trust Company,
National Association, as a custodian and Xxxxx 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
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participation agreement among the Servicer and Owner shall be entered into
with respect to such purchase money mortgage."
(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 5.4(a) shall be amended by replacing the words "March 15"
with the words "February 28 (provided that if, February 28 is not a Business
Day the immediately preceding Business Day).";
(g) Section 5.4(b) shall be amended by replacing the words "March 15"
with the words "February 28 (provided that if, February 28 is not a Business
Day the immediately preceding Business Day).";
(h) Section 5.5 shall be amended by replacing the words "March 15" with
the words "February 28 (provided that if, February 28 is not a Business Day
the immediately preceding Business Day)";
(i) 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
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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."
(j) Section 7.1 shall be amended as follows:
(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:
"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 which continues unremedied for a period
of fifteen (15) days after the date on which written notice of such failure,
requiring the same to be remedied shall have been given to the Servicer."
(iii) The words "thirty (30) Business Days" in the third sentence of
Section 7.1 shall be deleted and replaced with the words "thirty calendar
days"
(k) Section 8.2(a) shall be amended by deleting the words "30 days'"
from the first sentence of the first paragraph thereof.
(l) 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
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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).
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
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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.
(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:
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(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.
(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(R)
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.
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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).
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
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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.
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.
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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.
"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.
12
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.
0000 Xxxx Xxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
or such other address as may hereafter be furnished by the Servicer;
(b) in the case of the Assignee,
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
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: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the Assignee, and
(c) in the case of the Assignor,
Xxxxxxx Sachs Mortgage Company
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
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.
13
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]
14
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement the day and year first above written.
XXXXXXX SACHS MORTGAGE
COMPANY
By: Xxxxxxx Xxxxx Real Estate Funding
Corp., its General Partner
By: /s/ Xxxx Xxxxx
---------------------------------
Name:
Title: VP
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name:
Title: VP
INDYMAC BANK, F.S.B.
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Name:
Title: VP
Indymac Step 1 AAR
EXHIBIT 1
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
1-1
EXHIBIT 2
Servicing Agreement
[On File with the Depositor]
2-1
EXHIBIT 3
Sale Agreement
[On File with the Depositor]
3-2
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":
------------------------ -------------------------------------------------------------------- ------------------------
Applicable
Servicing Criteria Servicing Criteria
------------------------ -------------------------------------------------------------------- ------------------------
Reference Criteria
------------------------ -------------------------------------------------------------------- ------------------------
General Servicing Considerations
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(1)(i) Policies and procedures are instituted to monitor any performance X
or other triggers and events of default in accordance with the
transaction agreements.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(1)(ii) If any material servicing activities are outsourced to third X
parties, policies and procedures are instituted to monitor the
third party's performance and compliance with such servicing
activities.
------------------------ -------------------------------------------------------------------- ------------------------
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 X
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.
------------------------ -------------------------------------------------------------------- ------------------------
Cash Collection and Administration
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(2)(i) Payments on mortgage loans are deposited into the appropriate X
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.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(2)(ii) Disbursements made via wire transfer on behalf of an obligor or to X
an investor are made only by authorized personnel.
------------------------ -------------------------------------------------------------------- ------------------------
4-1
------------------------ -------------------------------------------------------------------- ------------------------
Applicable
Servicing Criteria Servicing Criteria
------------------------ -------------------------------------------------------------------- ------------------------
Reference Criteria
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(2)(iii) Advances of funds or guarantees regarding collections, cash flows X
or distributions, and any interest or other fees charged for such
advances, are made, reviewed and approved as specified in the
transaction agreements.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(2)(iv) The related accounts for the transaction, such as cash reserve X
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.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(2)(v) Each custodial account is maintained at a federally insured X
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.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(2)(vi) Unissued checks are safeguarded so as to prevent unauthorized X
access.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(2)(vii) Reconciliations are prepared on a monthly basis for all X
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.
------------------------ -------------------------------------------------------------------- ------------------------
Investor Remittances and Reporting
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(3)(i) Reports to investors, including those to be filed with the X
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
------------------------ -------------------------------------------------------------------- ------------------------
4-2
------------------------ -------------------------------------------------------------------- ------------------------
Applicable
Servicing Criteria Servicing Criteria
------------------------ -------------------------------------------------------------------- ------------------------
Reference Criteria
------------------------ -------------------------------------------------------------------- ------------------------
the trustee's records as to the total unpaid
principal balance and number of mortgage loans serviced by the
Servicer.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(3)(ii) Amounts due to investors are allocated and remitted in accordance X
with timeframes, distribution priority and other terms set forth
in the transaction agreements.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(3)(iii) Disbursements made to an investor are posted within two business X
days to the Servicer's investor records, or such other number of
days specified in the transaction agreements.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(3)(iv) Amounts remitted to investors per the investor reports agree with X
cancelled checks, or other form of payment, or custodial bank
statements.
------------------------ -------------------------------------------------------------------- ------------------------
Pool Asset Administration
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(4)(i) Collateral or security on mortgage loans is maintained as required X
by the transaction agreements or related mortgage loan documents.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(4)(ii) Mortgage loan and related documents are safeguarded as required by X
the transaction agreements
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(4)(iii) Any additions, removals or substitutions to the asset pool are X
made, reviewed and approved in accordance with any conditions or
requirements in the transaction agreements.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(4)(iv) Payments on mortgage loans, including any payoffs, made in X
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.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(4)(v) The Servicer's records regarding the mortgage loans agree with the X
Servicer's records with respect to an obligor's unpaid principal
balance.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(4)(vi) Changes with respect to the terms or status of an obligor's X
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.
------------------------ -------------------------------------------------------------------- ------------------------
4-3
------------------------ -------------------------------------------------------------------- ------------------------
Applicable
Servicing Criteria Servicing Criteria
------------------------ -------------------------------------------------------------------- ------------------------
Reference Criteria
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(4)(vii) Loss mitigation or recovery actions (e.g., forbearance plans, X
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.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(4)(viii) Records documenting collection efforts are maintained during the X
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).
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(4)(ix) Adjustments to interest rates or rates of return for mortgage X
loans with variable rates are computed based on the related
mortgage loan documents.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(4)(x) Regarding any funds held in trust for an obligor (such as escrow X
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.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(4)(xi) Payments made on behalf of an obligor (such as tax or insurance X
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.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(4)(xii) Any late payment penalties in connection with any payment to be X
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.
------------------------ -------------------------------------------------------------------- ------------------------
4-4
------------------------ -------------------------------------------------------------------- ------------------------
Applicable
Servicing Criteria Servicing Criteria
------------------------ -------------------------------------------------------------------- ------------------------
Reference Criteria
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(4)(xiii) Disbursements made on behalf of an obligor are posted within two X
business days to the obligor's records maintained by the servicer,
or such other number of days specified in the transaction
agreements.
------------------------ -------------------------------------------------------------------- ------------------------
1122(d)(4)(xiv) Delinquencies, charge-offs and uncollectible accounts are X
recognized and recorded in accordance with the transaction
agreements.
------------------------ -------------------------------------------------------------------- ------------------------
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
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