Exhibit 99.6
EXECUTION COPY
==============================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
as Assignee
XXXXXX'X GATE RESIDENTIAL MORTGAGE TRUST,
as Xxxxxx'x Gate
and
PHH MORTGAGE CORPORATION
as Servicer
and as acknowledged by
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
as Master Servicer
Dated as of
January 27, 2006
==============================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this 27th day
of January 2006 (this "Assignment Agreement"), among PHH Mortgage Corporation
(formerly known as Cendant Mortgage Corporation), a New Jersey corporation
(the "Servicer"), Xxxxxx'x Gate Residential Mortgage Trust, a Delaware
statutory trust (formerly known as Cendant Residential Mortgage Trust)
("Xxxxxx'x Gate" and, together with the Servicer, the "PHH Parties"), U.S.
Bank National Association, not in its individual capacity, but solely as
trustee on behalf of GSAA Home Equity Trust 2006-1 (the "Assignee" or
"Trustee"), and GS Mortgage Securities Corp., a Delaware corporation (the
"Assignor" or "Depositor"), and as acknowledged by JPMorgan Chase Bank,
National Association as master servicer (the "Master Servicer").
WHEREAS, Xxxxxxx Xxxxx Mortgage Company ("GSMC") and the PHH Parties
have entered into the Amended and Restated Mortgage Loan Flow Purchase, Sale &
Servicing Agreement, dated as of December 1, 2005 (the "Sale and Servicing
Agreement"), pursuant to which the PHH Parties sold to GSMC certain mortgage
loans listed on the mortgage loan schedule attached as an exhibit to the GSMC
Assignment Agreement (as defined below);
WHEREAS, GSMC has assigned and conveyed certain mortgage loans (the
"Mortgage Loans"), which Mortgage Loans are subject to the provisions of the
Sale and Servicing Agreement, to the Assignor pursuant to an Assignment,
Assumption and Recognition Agreement, dated as of January 27, 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 National Trust Company, as a custodian and JPMorgan Chase 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 Assignor will transfer the Mortgage
Loans to the Assignee, together with the Assignor's rights under the Sale and
Servicing 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 and Servicing 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 and Servicing Agreement, to the extent relating to the Mortgage
Loans from and after January 27, 2006, and the Servicer hereby acknowledges
such assignment and assumption and hereby agrees to the release of the
Assignor from any obligations under the Sale and Servicing Agreement from and
after January 27, 2006, to the extent relating to the Mortgage Loans.
(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
and Servicing Agreement.
(c) The PHH Parties and the Assignor shall have the right to amend,
modify or terminate the Sale and 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. Accuracy of Sale and Servicing Agreement. The PHH Parties 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 and Servicing
Agreement, (ii) the Sale and Servicing Agreement is in full force and effect
as of the date hereof, (iii) except as provided in Section 1 above, the Sale
and Servicing Agreement has not been amended or modified in any respect and
(iv) no notice of termination has been given to the Servicer under the Sale
and Servicing Agreement. The PHH Parties, in their respective capacities as
seller and/or servicer under the Sale and Servicing Agreement, further
represent and warrant that the representations and warranties contained in
Sections 3.01 and 3.02 of the Sale and Servicing Agreement are true and
correct as of the January 27, 2006 (the "Closing Date") and the
representations and warranties regarding the Mortgage Loans contained in
Section 3.03 of the Sale and Servicing Agreement were true and correct as of
the Closing Date (as such term is defined in the Sale and Servicing
Agreement).
3. Recognition of Assignee.
(a) 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 Sale and Servicing Agreement the
terms of which are incorporated herein by reference. It is the intention of
the Assignor, the PHH Parties and Assignee that the Sale and Servicing
Agreement shall be binding upon and inure to the benefit of the PHH Parties
and the Assignee and their successors and assigns.
(b) The Servicer further acknowledges that, from and after the date
hereof, it (and any of its successors under the Sale and Servicing Agreement)
will be subject to the supervision of the Master Servicer and that the Master
Servicer, acting on behalf of the Trustee as the owner of the Mortgage Loans,
shall have the same rights as were assigned by GSMC, in its capacity as the
original "Purchaser" under the Sale and Servicing Agreement, to the Assignor
under the GSMC Assignment Agreement, and further assigned hereunder by the
Assignor to the Trustee, on behalf of the trust formed pursuant to the Trust
Agreement. Such rights that Master
3
Servicer may enforce on behalf of the Trustee will include, without
limitation, the right to terminate the Servicer under the Sale and Servicing
Agreement upon the occurrence of an event of default thereunder, the right to
receive all remittances required to be made by the Servicer under the Sale and
Servicing Agreement, the right to receive all monthly reports and other data
required to be delivered by the Servicer under the Sale and Servicing
Agreement and the right to exercise certain rights of consent and approval
relating to actions taken by the Servicer.
(c) All reports and other data required to be delivered by the
Servicer to the "Purchaser" under the Sale and Servicing Agreement shall be
delivered to the Master Servicer or the Trustee, as designated by the Trustee,
at the address set forth in Section 10 hereof. All remittances required to be
made to the Trustee, as the successor in interest to the Assignor under the
Sale and Servicing Agreement, shall be made instead to the Master Servicer by
wire transfer to the following account:
JPMorgan Chase Bank, National Association
ABA #: 000000000
For credit to: SAS Clearing
Acct #: 507198670
FFC to: GSAA 2006-1 Acct #507198670
(d) Monthly Reporting
Notwithstanding anything to the contrary in the Sale and Servicing
Agreement, with respect to the Mortgage Loans, not later than the tenth (10th)
calendar day of each month (or if such tenth calendar day is not a Business
Day, the immediately succeeding Business Day), the Servicer shall furnish to
the Master Servicer (i) (a) monthly loan data in a mutually agreed-upon
format, (b) default loan data in the format mutually agreed-upon between the
Servicer and the Master Servicer and (c) information regarding realized losses
and gains in the format mutually agreed between the Servicer and the Master
Servicer, in each case relating to the period ending on the last day of the
preceding calendar month, (ii) all such information required pursuant to
clause (i)(a) above on a magnetic tape, electronic mail, or other similar
media reasonably acceptable to the Master Servicer and (iii) all supporting
documentation with respect to the information required pursuant to clause
(i)(c) above.
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 or the PHH
Parties other than those contained in the Sale and 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 Sale and Servicing Agreement.
4
(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 Sale and 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 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
5
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 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
and Servicing Agreement. Notwithstanding the foregoing, however, if such
breach is a Qualification Defect as defined in the Sale and Servicing
Agreement, such cure or repurchase must take place within 60 days of discovery
of such Qualification Defect.
In the event a PHH Party has breached a representation or warranty
under the Sale and Servicing 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 such PHH Party.
If the PHH Party 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 and Servicing 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 such PHH Party to cure such breach or
repurchase such Mortgage Loan under the terms of the Sale and Servicing
Agreement with respect to such Mortgage Loan. In the event of a repurchase of
any Mortgage Loan by the Assignor or PHH, the Trustee shall promptly deliver
to the Assignor or PHH, as applicable, or to such party's designee, the
related Mortgage File and shall assign to such party all of the Assignee's
rights under the Sale and Servicing Agreement, but only insofar as the Sale
and Servicing Agreement relates to such Mortgage Loan.
6
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.
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 Trustee 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 Sale and
Servicing 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 and 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
7
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 PHH Parties,
PHH Mortgage Corporation
0000 Xxxxxxxxxx Xxxx,
Xx. Xxxxxx, Xxx Xxxxxx 0000
Attention: Vice President of Servicing
or such address as may hereafter be furnished by the PHH
Parties;
(b) in the case of the Master Servicer,
JPMorgan Chase Bank, National Association
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such address as may hereafter be furnished by the Master
Servicer;
(c) in the case of the Trustee or the Assignee,
U.S. Bank National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx XX 1179
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the
Trustee or Assignee; and
(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.
8
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 Sale and
Servicing Agreement.
13. Trustee Capacity. It is expressly understood and agreed by the
parties hereto that (i) this Assignment Agreement is executed and delivered by
U.S. Bank National Association, not individually or personally but solely on
behalf of GSAA Home Equity Trust 2006-1, 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 U.S. Bank National Association
is made and intended for the purpose of binding only the GSAA Home Equity
Trust 2006-1, (iii) nothing herein contained shall be construed as creating
any liability for U.S. Bank National Association, 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 U.S. Bank National
Association be personally liable for the payment of any indebtedness or
expenses of the GSAA Home Equity Trust 2006-1, or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the GSAA Home Equity Trust 2006-1 under this Assignment
Agreement, the Trust Agreement or any related document.
9
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
-----------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION not in
its individual capacity but solely
as Trustee
By: /s/ Xxxxxxxx X'Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxxx X'Xxxxx Xxxxxxx
Title: Vice President
PHH MORTGAGE CORPORATION (formerly
known as CENDANT MORTGAGE CORPORATION)
By: /s/ Crissy Judge
-----------------------------------
Name: Crissy Judge
Title: Assistant Vice President
XXXXXX'X GATE RESIDENTIAL MORTGAGE
TRUST (formerly known as CENDANT
RESIDENTIAL MORTGAGE TRUST)
By: PHH Mortgage Corporation, as
Administrator
By: /s/ Crissy Judge
-----------------------------------
Name: Crissy Judge
Title: Assistant Vice President
PHH Step 2 AAR
Acknowledged and Agreed:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxxxx Xxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
PHH Step 2 AAR
EXHIBIT 1
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
PHH Step 2 AAR
EXHIBIT 2
Sale and Servicing Agreement
[See Exhibit 99.5 as Filed with the Commission on February 14, 2006]
S-1
