Exhibit 99.1
EXECUTION COPY
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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
COUNTRYWIDE HOME LOANS, INC.,
as Countrywide
and
COUNTRYWIDE HOME LOANS SERVICING LP,
as Servicer
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 Countrywide Home Loans
Servicing LP, (the "Servicer"), Countrywide Home Loans, Inc. ("Countrywide"),
GS Mortgage Securities Corp., as assignee (the "Assignee"), and Xxxxxxx Sachs
Mortgage Company, as assignor (the "Assignor").
WHEREAS, the Assignor, as purchaser, Countrywide, as servicing
rights purchaser and the Servicer have entered into the Flow Servicing Rights
Purchase and Servicing Agreement, dated as of April 16, 2004 (the "Servicing
Rights 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 have been subject to the provisions of the Servicing Rights
Agreement and are listed on the mortgage loan schedule attached as Exhibit 1
hereto (the "Mortgage Loan Schedule");
WHEREAS, the Assignor and the Servicer have entered into the
Servicing Agreement, dated as of July 1, 2004, as amended by that certain
Amendment Reg AB dated as of January 1, 2006 ("Amendment Reg AB" and, together
with the Servicing Agreement, the "Servicing Agreement");
WHEREAS, the Assignor, Assignee and Servicer intend the Servicer
to service the Mortgage Loans in accordance with the terms of the Servicing
Agreement as of the date hereof; 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"), as securities administrator and as a custodian, the
Assignee will transfer the Mortgage Loans to the Trustee, together with the
Assignee's rights and obligations 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 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) from and after
the date hereof), and the Assignee hereby assumes all of the Assignor's
obligations under the Servicing Agreement, to the extent relating to the
Mortgage Loans, from and after June 29, 2006, and the Servicer hereby
acknowledges such assignment and assumption and hereby
agrees to the release of the Assignor from any obligations under the Servicing
Rights Agreement from and after June 29, 2006, to the extent relating to the
Mortgage Loans and Countrywide hereby acknowledges such assignment and
assumption.
(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 Servicing Rights Agreement.
(c) The Servicer and the Assignor shall have the right to amend,
modify or terminate each of the Servicing Agreement and the Servicing Rights
Agreement without the joinder of the Assignee with respect to mortgage loans
not conveyed to the Assignee hereunder to the extent permitted by the
Servicing Agreement or the Servicing Rights Agreement; provided, however, that
such amendment, modification or termination shall not affect or be binding on
the Assignee.
2. 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) Section 3.13(b) shall be amended by deleting the second
paragraph thereof and replacing it with the following:
"The Company 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, (ii)
the Company obtains an extension from the Internal Revenue Service and (iii)
the Company 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 Company
shall report monthly to the Owner as to the progress being made in selling
such REO Property and (ii) if, with the written consent of the Owner, a
purchase money mortgage is taken in connection with such sale, such purchase
money mortgage shall name the Servicer as mortgagee, and such purchase money
mortgage shall not be held pursuant to this Agreement, but instead a separate
participation agreement among the Company and Owner shall be entered into with
respect to such purchase money mortgage."
(b) 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 Company duly to observe or perform in any material
respect any of the covenants or agreements on the part of the Company set
forth in this Agreement (other than those listed in subsection (i) and
subsection (ix) of this Section 7.1) which continues unremedied
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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
Company; or"
(ii) Subsection (vii) of Section 7.1 shall be amended by deleting
the "." at the end of subsection (vii) and replacing it with "; or"
(iii) Subsection (viii) of Section 7.1 shall be amended by
deleting the "." at the end of subsection (viii) and replacing it with
"; or"
(iv) A new subsection (ix) shall be added immediately following
subsection (viii) which shall be as follows:
"failure by the Company duly to observe or perform in any material
respect any of the covenants or agreements on the part of the Company set
forth in Section 5.6 of this Agreement which continues unremedied for a period
of 10 days after the date on which written notice of such failure, requiring
the same to be remedied shall have been given to the Company."
(c) Section 9.1(b) shall be amended by deleting it in its entirety
and replacing it with the following:
"The Company 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 and (iii) all other
amounts which may thereafter be received with respect to the Mortgage Loans
and to which the Company is not entitled pursuant to the terms of this
Agreement within two Business Days of notice of the appointment of such
successor. The Company shall deliver to the successor all Collateral Files and
Servicing Files and related documents and statements held by it hereunder
within thirty calendar days of receipt of notice of the appointment of such
successor. The Company shall account for all funds and shall execute and
deliver such instruments and do such other things as may reasonably be
required to more fully and definitively vest in the successor all such rights,
powers, duties, responsibilities, obligations and liabilities of the Company."
(d) Section 2(c)(iv) of that certain Amendment Reg AB shall be
amended by deleting it in its entirety and replacing it with the following:
"For the purpose of satisfying its reporting obligation under the
Exchange Act with respect to any class of asset-backed securities, the Company
shall (or shall cause each Subservicer and, if applicable, any Third-Party
Originator to) (a) provide prompt notice to the Purchaser, any Master Servicer
and any Depositor in writing of (1) any merger, consolidation or sale of
substantially all of the assets of the Company, (2) the Company's entry into
an agreement with a Subservicer to perform or assist in the performance of any
of the Company's obligations under the Agreement or any Reconstitution
Agreement that qualifies as an "entry into a material definitive agreement"
under Item 1.01 of the form 8-K, (3) any Event of Default under the terms of
the Agreement or any Reconstitution Agreement to the extent not known by such
Purchaser, Master Servicer or Depositor, and (4) any material litigation or
governmental proceedings involving the Company, any Subservicer or any Third
Party Originator."
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(e) A new Section 2(c)(vi) shall be added to that certain
Amendment Reg AB as follows:
"The Company shall provide to the Purchaser and any Depositor a
description of any affiliation or relationship required to be disclosed under
Item 1119 between the Company and any of the parties listed in Items 1119
(a)(1)-(6) of Regulation AB that develops following the closing date of a
Securitization Transaction (other than an affiliation or relationship that the
Purchaser, the Depositor or the issuing entity is required to disclose under
Item 1119 of Regulation AB) no later than 15 calendar days prior to the date
the Depositor is required to file its Form 10-K disclosing such affiliation or
relationship. For purposes of the foregoing, the Company (1) shall be entitled
to assume that the parties to the Securitization Transaction with whom
affiliations or relations must be disclosed are the same as on the closing
date if it provides a written request (which may be by e-mail) to the
Depositor or Master Servicer, as applicable, requesting such confirmation and
either obtains such confirmation or receives no response within three (3)
Business Days, (2) shall not be obligated to disclose any affiliations or
relationships that may develop after the closing date for the Securitization
Transaction with any parties not identified to the Company pursuant to clause
(D) of paragraph (i) of this Section 2(c), and (3) shall be entitled to rely
upon any written identification of parties provided by the Depositor, the
Purchaser or any master servicer."
(f) A new section 6 shall be added immediately following section 5
of that certain Amendment Reg AB which shall be as follows:
"6. 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, as trustee and as custodian, U.S. Bank
National Association, as a custodian, JPMorgan Chase Bank, National
Association, as a custodian and Xxxxx Fargo Bank, National Association, shall
be considered a third-party beneficiary to Sections 2(d), 2(e) and 2(g) of
this Amendment Reg AB (solely with respect to noncompliance under Sections
2(d) and 2(e) of this Amendment Reg AB), entitled to all the rights and
benefits thereof as if it were a direct party to the Amendment Reg AB."
3. Accuracy of Servicing Agreement. (a) The Assignor represents
and warrants to the Assignee that attached hereto as Exhibit 2 is a true,
accurate and complete copy of the Servicing Agreement. The Servicer and the
Assignor represent and warrant to the Assignee that (i) the Servicing
Agreement is in full force and effect as of the date hereof, (ii) except as
set forth in this Assignment Agreement, the Servicing Agreement has not been
amended or modified in any respect and (iii) no notice of termination has been
given to the Servicer under the Servicing Agreement. The Servicer, in its
capacity as servicer under the Servicing Agreement, further represents and
warrants that the representations and warranties contained in Section 2.1 of
the Servicing Agreement are true and correct in all material respects as of
the Closing Date (as such term is defined in the Servicing Agreement).
4. Recognition of Assignee. From and after the date hereof or
until the Assignee no longer owns the Mortgage Loans, the Servicer shall note
the transfer of the Mortgage Loans to the Assignee in its books and records,
shall recognize the Assignee as the
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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.
5. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor, Countrywide and the Servicer
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, Countrywide
or the Servicer other than those contained in the Servicing Agreement or this
Assignment Agreement.
(b) Authority. The Assignee hereto represents and warrants that it
is duly and legally authorized to enter into this Assignment Agreement and to
perform its obligations hereunder and under the Servicing Agreement.
(c) Enforceability. The Assignee hereto represents and warrants
that this 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).
6. Representations and Warranties of the Assignor. The Assignor
hereby represents and warrants to the Assignee, Countrywide, and the Servicer
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 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
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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 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, with respect to the Mortgage
Loans, the Assignor has made no representations or warranties to the Assignee
other than those contained in Section 6, and no other affiliate of the
Assignor has made any representations or warranties of any kind to the
Assignee.
7. Covenants of the Servicer. The Servicer hereby covenants 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) after the
date hereof in accordance with the Servicing Agreement, but in no event in a
manner that would (a) cause the REMIC to fail or 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).
8. Continuing Effect. Except as contemplated hereby, the Servicing
Agreement shall remain in full force and effect in accordance with its terms.
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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 Servicing 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,
Countrywide Home Loans Servicing LP
000 Xxxxxxxxxxx Xxx
Xxxx Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx, Xxxxxx Xxxx,
Xxxx Xxxxxx and Xxxx Xx
With a copy to:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
or such other address as may hereafter be furnished by the Servicer;
(b) in the case of Countrywide,
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxxxxx
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With a copy to:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
or such other address as may hereafter be furnished by Countrywide;
(c) 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
(d) in the case of the Assignor,
Xxxxxxx Xxxxx 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 Servicing
Agreement or the Trust 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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IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement the day and year first above written.
XXXXXXX XXXXX MORTGAGE
COMPANY
By: Xxxxxxx Sachs Real Estate Funding
Corp., its General Partner
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS
SERVICING LP
BY: COUNTRYWIDE GP, INC., ITS
GENERAL PARTNER
By: /s/ Xxxxxx X. Xxx
----------------------------------
Name: Xxxxxx X. Xxx
Title: Senior Vice President
COUNTRYWIDE HOME LOANS, INC.
By:
----------------------------------
Name:
Title:
CHL Step 1 AAR
EXHIBIT 1
Mortgage Loan Schedule
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[On File with the Securities Administrator as provided by the Depositor]
1-1
EXHIBIT 2
Servicing Agreement
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[On File with the Depositor]
3-1
