Exhibit 99.5
EXECUTION COPY
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR GSAA HOME
EQUITY TRUST 2006-2
as Assignee
and
AMERIQUEST MORTGAGE COMPANY
as Ameriquest
and as acknowledged by
XXXXX FARGO BANK, N.A.
as Master Servicer
Dated as of
February 6, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this 6th day
of February 2006 (this "Assignment Agreement"), among Ameriquest Mortgage
Company, a Texas corporation ("Ameriquest"), Deutsche Bank National Trust
Company ("Deutsche Bank"), not in its individual capacity, but solely as
trustee (the "Trustee") on behalf of GSAA Home Equity Trust 2006-2 (the
"Assignee"), and GS Mortgage Securities Corp., a Delaware corporation (the
"Assignor" or "Depositor"), and as acknowledged by Xxxxx Fargo Bank, N.A., as
master servicer (the "Master Servicer").
WHEREAS, Xxxxxxx Xxxxx Mortgage Company ("GSMC") 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, GSMC has assigned and conveyed certain of the mortgage
loans (the "Mortgage Loans"), which Mortgage Loans are subject to the
provisions of the Sale Agreement, to the Assignor pursuant to an Assignment,
Assumption and Recognition Agreement, dated as of February 6, 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 January 1, 2006 (the "Trust Agreement"), among the Depositor, the
Trustee, Deutsche Bank, as custodian and Xxxxx Fargo Bank, N.A., as master
servicer (in such capacity, the "Master Servicer"), securities administrator
(in such capacity, the "Securities Administrator"), the Assignor will transfer
the Mortgage Loans to the Assignee, together with the Assignor's rights under
the Sale 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.
(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 and
the GSMC Assignment Agreement (including without limitation the rights of GSMC
under the Sale 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 Sale Agreement, to
the extent relating to the Mortgage Loans from and after the date hereof.
(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 date of the Sale
Agreement.
(c) 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. Accuracy of 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 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, except as pursuant
to the GSMC Assignment Agreement and (iv) no notice of termination has been
given to Ameriquest under the Sale Agreement. Ameriquest further 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).
3. Recognition of Assignee. From and after the date hereof,
Ameriquest 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 Ameriquest, the Assignor and the
Assignee that the Sale Agreement shall be binding upon and inure to the
benefit of the Assignee and its 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 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
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).
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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 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.
It is understood and agreed that the representations and
warranties set forth in this Section 5 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
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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 6 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 5.
It is understood and agreed that the Assignor has made no
representations or warranties to the Assignee other than those contained in
this Section 5, 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 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.
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. If Ameriquest
does not within 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 Assignee shall be entitled to
enforce the obligations of the Assignor hereunder to cure such breach or to
purchase the Mortgage Loan from the Trust. In such event, the Assignor shall
succeed to the rights of the Assignee to enforce the obligations of Ameriquest
to cure such 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 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 Sale Agreement,
but only insofar as the 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.
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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.
If the Master Servicer exercises its option to solicit bids and
terminates the Trust Fund pursuant to Section 11.01(a) of the Trust Agreement,
by no later than the 10th day of the month of the final distribution, the
Master Servicer shall notify the Trustee and the Securities Administrator of
the final Distribution Date and of the applicable sale price of the Mortgage
Loans and REO Properties.
In the event the Mortgage Loans (and REO Properties) are sold
pursuant to Section 11.01(a) 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 Custodian of a Request for Release therefor,
the Master Servicer shall direct the Custodian to release to the Master
Servicer or its designee the Custodial Files for the Mortgage Loans.
8. Continuing Effect. Except as contemplated hereby, the Sale
Agreement shall remain in full force and effect in accordance with their
respective 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.
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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 Ameriquest,
Ameriquest Mortgage Company
0000 Xxxx & Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
with a copy to:
Ameriquest Mortgage Company
0000 Xxxx & Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Director of Capital Markets
or such address as may hereafter be furnished by Ameriquest;
(b) in the case of the Master Servicer,
Xxxxx Fargo Bank, N.A.
X.X. Xxx 00
Xxxxxxxx, Xxxxxxxx 00000
Attention: GSAA 2006-2
Or in the case of overnight deliveries:
Xxxxx Fargo Bank, N.A.
0000 Xxx Xxxxxxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000
Attention: GSAA 2006-2
or such address as may hereafter be furnished by the Master Servicer;
(c) 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: Corporate Trust Services
Tel.: (000) 000-0000
or such other address as may hereafter be furnished by the Trustee or
Assignee; and
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(d) in the case of the Assignor,
GS Mortgage Securities Corp.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx 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. 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 2006-2, 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 2006-2, (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 2006-2, or be
liable for the breach or failure of any obligation, representation, warranty
or covenant made or undertaken by the GSAA Home Equity Trust 2006-2 under this
Assignment Agreement, the Trust Agreement or any related document.
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IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement the day and year first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
Title: Vice President
DEUTSCHE BANK NATIONAL TRUST COMPANY
not in its individual capacity but
solely as Trustee
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
Title: Vice President
AMERIQUEST MORTGAGE COMPANY
By: /s/ Xxxxxx X Xxxx
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Name: Xxxxxx X. Xxxx
Title: EVP-Legal
Acknowledged and Agreed:
XXXXX FARGO BANK, N.A.,
as Master Servicer
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Vice President
Ameriquest Step 2 AAR
EXHIBIT 1
Mortgage Loan Schedule
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[On File with the Securities Administrator as provided by the Depositor]
EXHIBIT 2
Sale Agreement
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[On File with the Depositor]
EXHIBIT 3
Sale Agreement
[On File with the Depositor]
