EXECUTION COPY
--------------
EXHIBIT 99.18
================================================================================
GSAA HOME EQUITY TRUST 2006-10
ASSET-BACKED CERTIFICATES
SERIES 2006-10
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
DEUTSCHE BANK NATIONAL TRUST COMPANY,
AS TRUSTEE FOR GSAA HOME EQUITY TRUST 2006-10,
as Assignee
and
IMPAC FUNDING CORPORATION,
as the Company
and as acknowledged by
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
Dated as of
June 29, 2006
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this 29th
day of June, 2006 (this "Assignment Agreement"), among Impac Funding
Corporation, a California corporation (the "Company"), Deutsche Bank National
Trust Company, not in its individual capacity, but solely as trustee (in such
capacity, the "Trustee") on behalf of GSAA Home Equity Trust 2006-10 (the
"Assignee"), and GS Mortgage Securities Corp., a Delaware corporation (the
"Assignor" or "Depositor"), and as acknowledged by Xxxxx Fargo Bank, National
Association, as master servicer (in such capacity, the "Master Servicer").
WHEREAS, Xxxxxxx Xxxxx Mortgage Company ("GSMC") and Novelle
Financial Services, Inc. ("Novelle") have entered into (i) the Flow Mortgage
Loan Purchase and Warranties Agreement, dated as of December 1, 2005 (the
"Purchase Agreement") and (ii) the Purchase Price and Terms Agreement, dated
January 12, 2006, between Novelle and the Assignor (the "PPTA"), pursuant to
which Novelle sold to GSMC certain mortgage loans on a servicing-released
basis attached as an exhibit to the Master Servicing and Trust Agreement (as
defined below);
WHEREAS, the Company is the sole owner of Novelle;
WHEREAS, GSMC has assigned and conveyed certain mortgage loans
(the "Mortgage Loans"), which Mortgage Loans are subject to the provisions of
the Purchase Agreement, to the Assignor pursuant to an Assignment, Assumption
and Recognition Agreement, dated as of June 29, 2006 (the "GSMC Assignment
Agreement");
WHEREAS, the Assignee has agreed on certain terms and conditions
to purchase from the Assignor the Mortgage Loans acquired by the Assignor
pursuant to the GSMC Assignment Agreement, which Mortgage Loans 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 the Depositor, the Trustee,
Deutsche Bank National Trust Company, 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,
securities administrator (in such capacity, the "Securities Administrator")
and as a custodian, the Assignor will transfer the Mortgage Loans to the
Assignee, together with the Assignor's rights under the Purchase Agreement, to
the extent relating to the Mortgage Loans (other than the rights of the
Assignor to indemnification thereunder).
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
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 and the GSMC Assignment Agreement (including without
limitation the rights of GSMC under the Purchase Agreement, to the extent
assigned to the Assignor under the GSMC Assignment
Agreement) from and after the date hereof, and the Assignee hereby assumes all
of the Assignor's obligations under the Purchase Agreement, to the extent
relating to the Mortgage Loans from and after the date hereof, and the Company
hereby acknowledges such assignment and assumption and hereby agrees to the
release of the Assignor from any obligations under the Purchase 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
Purchase Agreement.
(b) Novelle and the Assignor shall have the right to amend,
modify or terminate the Purchase 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. Accuracy of the Purchase Agreement. The Assignor represents
and warrants to the Assignee that (i) attached hereto as Exhibit 2 is a true,
accurate and complete copy of the Purchase Agreement, (ii) the Purchase
Agreement is in full force and effect as of the date hereof, (iii) except as
contemplated herein or as previously disclosed in the GSMC Assignment
Agreement, the Purchase Agreement has not been amended or modified in any
respect and (iv) no notice of termination has been given to Novelle under the
Purchase Agreement. Pursuant to Section 13 of the Purchase Agreement, the
Company hereby represents and warrants that the representations and warranties
set forth in Subsections 9.01 and 9.02 of the Purchase Agreement are true and
correct (with respect to the representations and warranties set forth in
Section 9.02 (a), the first sentence of (b), the first sentence of (c) (other
than the first clause thereof), (d), (f) (except the last sentence of (f)),
(n), (o), (p), the last sentence of (s), (t) (except the first sentence of
(t)), (w), (x), (y), (ii), (qq), (rr), (ss), (tt) and (iii), as of the
Transfer Date (as defined in the Purchase Agreement)) as of February 7, 2006,
as if such representations and warranties were made on February 7, 2006.
3. Recognition of Assignee.
From and after the date hereof, the Company 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. It is the intention
of the Assignor, the Company and Assignee that the Purchase Agreement shall be
binding upon and inure to the benefit of the Company and the Assignee and
their successors and assigns.
4. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor as follows:
(a) Decision to Purchase. The Assignee represents and warrants
that it is a sophisticated investor able to evaluate the risks and merits of
the transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor, Novelle or
the Company other than those contained in the Purchase 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 Purchase 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).
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 corporation in good standing under the laws of the State
of Delaware with full power and authority (corporate and other) to enter into
and perform its obligations under the Purchase 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.
It is understood and agreed that the representations and
warranties set forth in this Section 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 a Mortgage Loan constitute the sole remedies available
to the Assignee and its assigns on their behalf respecting a breach of the
representations and warranties contained in this Section 6.
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in
this Section 6, and no other affiliate of the Assignor has made any
representations or warranties of any kind to the Assignee.
6. 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
PPTA. In the event of a repurchase or substitution of any Mortgage Loan by the
Assignor, the Trustee 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 the Purchase Agreement, but only insofar as the
Purchase 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.
7. Termination; Optional Clean-Up Call.
In connection with the Trust Agreement, the Master Servicer hereby
agrees to the following obligations described below. For purposes of this
Section 7 only, any capitalized term used but not defined in this Assignment
Agreement has the same meaning assigned thereto in the Trust Agreement.
In the event that a Person specified in Section 11.01 of the Trust
Agreement chooses to exercise its option set forth therein to purchase the
Mortgage Loans and REO Properties or to conduct an Auction Call for such
property of the Trust Fund, as the case may be, by no later than the 10th day
of the month of the final distribution, such Person shall notify the
Depositor, the Trustee and the Securities Administrator of the final
Distribution Date and of the applicable purchase or sale price of the Mortgage
Loans and REO Properties determined and in the manner as provided in the Trust
Agreement.
In the event the Mortgage Loans and REO Properties are purchased
or sold pursuant to Section 11.01 of the Trust Agreement, the Master Servicer
shall remit to the Securities Administrator the applicable Termination Price
on the Remittance Date immediately preceding the applicable final Distribution
Date. Upon such final deposit with respect to the Trust Fund and the receipt
by the Securities Administrator and the Custodians of a Request for Release
therefor, the Master Servicer shall direct the Custodians to release to the
Master Servicer or its designee the Custodial Files for the Mortgage Loans.
8. Continuing Effect. Except as contemplated hereby, the
Purchase 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 Purchase 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 Company,
Impac Funding Corporation
0000 Xxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
or such other address as may hereafter be furnished by the Company;
(b) in the case of the Master Servicer,
Xxxxx Fargo Bank, National Association
X.X. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
Attention: GSAA 2006-10
or in the case of overnight deliveries:
Xxxxx Fargo Bank, National Association
0000 Xxx Xxxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: GSAA 2006-10
or such address as may hereafter be furnished by the Master Servicer;
(d) in the case of the Trustee or the Assignee,
Deutsche Bank National Trust Company
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000-0000
Attention: Trust Administration - GS0610
Tel.: (000) 000-0000
or such other address as may hereafter be furnished by the Trustee or
Assignee; and
(e) in the case of the Assignor,
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 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 Purchase
Agreement.
13. Trustee Capacity. It is expressly understood and agreed by
the parties hereto that (i) this Assignment Agreement is executed and
delivered by Deutsche Bank National
Trust Company, not individually or personally, but solely on behalf of GSAA
Home Equity Trust 2006-10, as the Assignee, in the exercise of the powers and
authority conferred and vested in it, (ii) each of the representations,
undertakings and agreements by Deutsche Bank National Trust Company is made
and intended for the purpose of binding only the GSAA Home Equity Trust
2006-10, (iii) nothing herein contained shall be construed as creating any
liability for Deutsche Bank National Trust Company, individually or
personally, to perform any covenant (either express or implied) contained
herein, and all such liability, if any, is hereby expressly waived by the
parties hereto, and such waiver shall bind any third party making a claim by
or through one of the parties hereto, and (iv) under no circumstances shall
Deutsche Bank National Trust Company be personally liable for the payment of
any indebtedness or expenses of the GSAA Home Equity Trust 2006-10, or be
liable for the breach or failure of any obligation, representation, warranty
or covenant made or undertaken by the GSAA Home Equity Trust 2006-10 under
this Assignment Agreement, the Trust Agreement or any related document.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement the day and year first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY,
not in its individual capacity but
solely as Trustee
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
IMPAC FUNDING CORPORATION
By: /s/ Xxx Xxxxxx
-------------------------------------
Name: Xxx Xxxxxx
Title: VP
Acknowledged and Agreed:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
Impac/Novelle Step 2 AAR
EXHIBIT 1
Mortgage Loan Schedule
----------------------
[On File with the Securities Administrator as provided by the Depositor]
I-1
EXHIBIT 2
Purchase Agreement
------------------
[On File with the Depositor]
