EXECUTION COPY
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EXHIBIT 99.7
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GSAA HOME EQUITY TRUST 2006-10
ASSET-BACKED CERTIFICATES
SERIES 2006-10
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
and
AMERIQUEST MORTGAGE COMPANY,
as Ameriquest
Dated as of
June 29, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment
Agreement") made this 29th day of June, 2006, among GS Mortgage Securities
Corp., as assignee (the "Assignee"), Xxxxxxx Sachs Mortgage Company, as
assignor (the "Assignor") and Ameriquest Mortgage Company ("Ameriquest").
WHEREAS, the Assignor and Ameriquest have entered into the Amended
and Restated Flow Mortgage Loan Purchase and Warranties Agreement, dated as of
June 1, 2005 (the "Sale Agreement"), pursuant to which Ameriquest sold to the
Assignor certain mortgage loans on a servicing released basis listed on the
mortgage loan schedule attached as an exhibit to the Master Servicing and
Trust Agreement (as defined below);
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 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 June 1, 2006 (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, JPMorgan Chase Bank, National Association, as a custodian, and
Xxxxx Fargo Bank, National Association, as master servicer (in such capacity,
the "Master Servicer"), securities administrator (in such capacity, the
"Securities Administrator") and as a custodian, the Assignee will transfer the
Mortgage Loans to the Trustee, together with the Assignee's rights under 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).
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. 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 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
Sale Agreement, to the extent relating to the Mortgage Loans, from and after
the date hereof, and Ameriquest hereby acknowledges such assignment and
assumption and hereby agrees to the release of the Assignor from any
obligations under the Sale Agreement from and after the date hereof, to the
extent relating to the Mortgage Loans.
(a) The Assignor represents and warrants to the Assignee that the
Assignor has not taken any action which would serve to impair or encumber the
Assignor's ownership interest in the Mortgage Loans since the date of the Sale
Agreement.
(b) Ameriquest and the Assignor shall have the right to amend,
modify or terminate the Sale 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, Ameriquest and the Assignor hereby amend the Sale
Agreement as follows:
(a) a new section, Section 30, will be added immediately following
Section 29 which shall read as follows:
"SECTION 30. Third Party Beneficiary.
Xxxxx Fargo Bank, National Association as master servicer,
securities administrator and a custodian under the Master Servicing and Trust
Agreement, dated as of June 1, 2006, among GS Mortgage Securities Corp.,
Deutsche Bank National Trust Company, JPMorgan Chase Bank, National
Association 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."
3. Accuracy of Sale Agreement. Ameriquest 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 Sale Agreement, (ii) the Sale Agreement is
in full force and effect as of the date hereof, (iii) the Sale Agreement has
not been amended or modified in any respect and (iv) to the best of the
Assignor's knowledge, no notice of termination has been given to Ameriquest
under the Sale Agreement. Ameriquest represents and warrants that the
representations and warranties contained in Section 9.01 of the Sale Agreement
are true and correct as of the Closing Date (as such term is defined in the
Sale Agreement), and the representations and warranties regarding the Mortgage
Loans contained in Section 9.02 of the Sale Agreement were true and correct as
of the Closing Date or Transfer Date, as applicable (as each such term is
defined in the Sale Agreement).
4. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor as follows:
(a) Decision to Purchase. The Assignee represents and warrants that
it is a sophisticated investor able to evaluate the risks and merits of the
transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of Ameriquest or the Assignor
other than those contained in 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 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).
5. 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 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.
6. 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 5.6(d), 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) Prepayment Premiums. To the Assignor's knowledge, no Mortgage
Loan originated on or after October 1, 2002 will impose a prepayment premium
for a term in excess of three years. Any loans originated prior to such date,
and any non-subprime loans, will not impose prepayment penalties in excess of
five years.
(h) Manufactured Housing. To the Assignor's knowledge, with respect
to any Mortgage Loans that are on manufactured housing, such housing will be
the principal residence of the borrower upon origination of the Mortgage Loan.
(i) Bring Down. To the Assignor's knowledge, with respect to each
Mortgage Loan, no event has occurred from and after the applicable date set
forth in the Sale
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Agreement to the date hereof that would cause any of the representations and
warranties relating to such Mortgage Loan set forth in Section 9.02 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 5 and 6 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 7 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 5 and 6. It is further understood and agreed that, except as
specifically set forth in Sections 5 and 6, the Assignor shall be deemed not
to have made the representations and warranties in Section 6(i) with respect
to, and to the extent of, representations and warranties made, as to the
matters covered in Section 6(i), by Ameriquest 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 5 and 6, and no other affiliate of the
Assignor has made any representations or warranties of any kind to the
Assignee.
7. Repurchase of Mortgage Loans. Upon discovery or notice of any
breach by the Assignor of any representation, warranty or covenant under this
Assignment Agreement that materially and adversely affects the value of any
Mortgage Loan or the interest of the Assignee therein (it being understood
that any such defect or breach shall be deemed to have materially and
adversely affected the value of the related Mortgage Loan or the interest of
the Assignee therein if the Assignee incurs a loss as a result of such defect
or breach), the Assignee promptly shall request that the Assignor cure such
breach and, if the Assignor does not cure such breach in all material respects
within 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).
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
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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 Ameriquest 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 Ameriquest to cure such
breach or purchase such mortgage loan from the Trust. If Ameriquest 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 Ameriquest 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 a repurchase of any Mortgage Loan by Ameriquest (or
in the case of the Assignor, a repurchase or substitution of any Mortgage
Loan) hereunder, the Assignor shall succeed to the rights of the Assignee to
enforce the obligations of Ameriquest 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 of any Mortgage Loan by Ameriquest
or the repurchase or substitution of any Mortgage Loan by the Assignor, the
Trustee shall deliver to Ameriquest or the Assignee, as applicable, the
related Mortgage Files. Upon the receipt of such Mortgage Files, Ameriquest or
Assignee, as applicable, shall promptly deliver to the Assignor or its
designee such Mortgage Files and shall assign to the Assignor all of its
rights to such Mortgage Loan under the Sale Agreement, but only insofar as
such Sale 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 7, 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
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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 the Section 9.02 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.
8. Continuing Effect. Except as contemplated hereby, the Sale
Agreement shall remain in full force and effect in accordance with its terms.
9. 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.
10. Notices. Any notices or other communications permitted or
required hereunder or under 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 Ameriquest,
Ameriquest Mortgage Company
0000 Xxxx & Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
with a copy to:
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Ameriquest Mortgage Company
0000 Xxxx & Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Director of Capital Markets
or such other address as may hereafter be furnished by Ameriquest,
(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.
11. 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.
12. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Trust Agreement
or Sale Agreement, as applicable.
13. Third Party Beneficiary. The parties agree that the Trustee is
intended to be, and shall have the rights of, a third party beneficiary of
this Assignment Agreement.
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[SIGNATURE PAGE FOLLOWS]
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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/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Vice President
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Vice President
AMERIQUEST MORTGAGE COMPANY
By: /s/ Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: EVP
Amerquest Step 1 AAR
EXHIBIT 1
Mortgage Loan Schedule
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EXHIBIT 2
Sale Agreement
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