EXHIBIT 99.18
EXECUTION COPY
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
as Assignee
and
AVELO MORTGAGE, L.L.C.
as Servicer
and as acknowledged by
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Master Servicer
Dated as of
March 30, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated March 30,
2006 (this "Agreement"), among GS Mortgage Securities Corp. ("Assignor" or
"Depositor"), U.S. Bank National Association, not in its individual capacity
but solely as trustee on behalf of GSAA Home Equity Trust 2006-5 ("Assignee"
or "Trustee"), Avelo Mortgage, L.L.C. (the "Servicer") and as acknowledged by
JPMorgan Chase Bank, National Association, as master servicer (the "Master
Servicer").
For and in consideration of the mutual promises contained herein
and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, and of the mutual covenants herein contained, the
parties hereto hereby agree as follows:
1. Assignment, Assumption and Conveyance.
The Assignor hereby conveys, sells, grants, transfers and assigns
to the Assignee all of the right, title and interest (other than those rights
specifically retained by the Assignor pursuant to this Agreement) of the
Assignor, as purchaser, in, to and under (a) those certain Mortgage Loans
listed on the schedule (the "Mortgage Loan Schedule") attached hereto as
Exhibit A (the "Mortgage Loans"), (b) the Representations and Warranties
Agreement, dated as of March 30, 2006, between Xxxxxxx Xxxxx Mortgage Company
and the Assignor (the "Representations and Warranties Agreement") and (d)
solely insofar as it relates to the Mortgage Loans, that certain Flow
Servicing Agreement, dated as of January 1, 2006 (the "Servicing Agreement"),
by and between Xxxxxxx Sachs Mortgage Company as predecessor to the Assignor
(in such capacity, the "Owner") and the Servicer. The Assignor hereby agrees
that it will (i) deliver possession of notes evidencing the Mortgage Loans to,
or at the direction of, the Assignee or its designee and (ii) take in a timely
manner all necessary steps under all applicable laws to convey and to perfect
the conveyance of the Mortgage Loans as required under the Master Servicing
and Trust Agreement, dated as of March 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 and JPMorgan Chase
Bank, National Association, as master servicer (in such capacity, the "Master
Servicer"), as securities administrator and as a custodian.
The Assignor specifically reserves and does not assign to the
Assignee hereunder (i) any and all right, title and interest in, to and under
and any obligations of the Assignor with respect to any mortgage loans subject
to the Servicing Agreement that are not the Mortgage Loans set forth on the
Mortgage Loan Schedule and are not the subject of this Agreement, (ii) any
rights and obligations of the Assignor pursuant to the Servicing Agreement
arising prior to the date hereof or (iii) the rights and obligations of the
Owner under the following sections of the Servicing Agreement: Section 6.02
(relating to the Owner's right to terminate the Servicer), Section 5.01
(relating to the Owner's right to receive information from the Servicer) and
Section 11.16 (relating the Owner's obligation to execute certain
confidentiality agreements).
The Assignee hereby assumes all of the Assignor's obligations
under the Mortgage Loans and the Servicing Agreement solely insofar as such
obligations relate to the
Mortgage Loans, other than the obligations set forth in clauses (ii) and (iii)
of the preceding paragraph.
The parties hereto agree that with respect to the Mortgage Loans
being serviced under the Servicing Agreement the Servicing Fee Rate for the
Mortgage Loans shall be the rate set forth on the Mortgage Loan Schedule.
2. Recognition of the Assignee.
The Servicer hereby acknowledges and agrees that from and after
the date hereof (i) the Trust will be the owner of the Mortgage Loans and the
Servicer will be the servicer of the Mortgage Loans on or after the applicable
Transfer Date pursuant to the terms set forth in the Trust Agreement, (ii) the
Servicer shall look solely to the Trust (including the Trustee and the Master
Servicer acting on the Trust's behalf) for performance of any obligations of
the Assignor under the Mortgage Loans and the Servicing Agreement (solely
insofar as it relates to the Mortgage Loans) (except for such obligations of
the Assignor retained by the Assignor hereunder), (iii) the Trust (including
the Trustee and the Master Servicer acting on the Trust's behalf) shall have
all the rights and remedies available to the Assignor, insofar as they relate
to the Mortgage Loans, under the applicable purchase agreement pursuant to
which the Owner purchased the related Mortgage Loans from the related Seller
and the Servicing Agreement, including, without limitation, the enforcement of
the document delivery requirements set forth in Section 5(b) of the related
purchase agreement, and shall be entitled to enforce all of the obligations of
the Servicer thereunder insofar as they relate to the Mortgage Loans,
including without limitation, the remedies for breaches of representations and
warranties set forth in Article IX of the Servicing Agreement (except for the
rights and remedies retained by the Assignor hereunder), (iv) all references
to the Owner under the Servicing Agreement insofar as they relate to the
Mortgage Loans shall be deemed to refer to the Trust (except to the extent of
the rights and obligations retained by the Assignor hereunder) (including the
Trustee and the Servicer acting on the Trust's behalf) and (v) the Mortgage
Loans will be part of a REMIC, and 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) prior to the applicable Transfer Date in accordance
with the Servicing Agreement but in no event in a manner that would (A) cause
the REMIC to fail to 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). Neither the Servicer nor the Assignor shall amend or agree to
amend, modify, waiver, or otherwise alter any of the terms or provisions of
the Servicing Agreement which amendment, modification, waiver or other
alteration would in any way affect the Mortgage Loans or the Servicer's
performance under the Servicing Agreement with respect to the Mortgage Loans
without the prior written consent of the Trustee.
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 Servicing Agreement the terms of
which are incorporated herein by reference. It is the intention of the
Assignor, Servicer and Assignee that the Servicing Agreement shall be binding
upon and inure to the benefit of the Servicer 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 Servicing Agreement) will
be subject to the supervision of the Master Servicer with respect to the
Mortgage Loans and that the Master Servicer, acting on behalf of the Trustee
as the owner of the Mortgage Loans, shall have the same rights with respect to
the Mortgage Loans as were assigned by GSMC, in its capacity as the original
"Owner" under the 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 Servicer may enforce on behalf of the Trustee will include,
without limitation, the right to terminate the Servicer under the Servicing
Agreement with respect to the Mortgage Loans upon the occurrence of an event
of default thereunder, the right to receive all remittances required to be
made by the Servicer with respect to the Mortgage Loans under the Servicing
Agreement, the right to receive all monthly reports and other data required to
be delivered by the Servicer with respect to the Mortgage Loans under the
Servicing Agreement and the right to exercise certain rights of consent and
approval relating to actions taken by the Servicer with respect to the
Mortgage Loans.
(c) All reports and other data required to be delivered by the
Servicer to the "Owner" under the Servicing Agreement with respect to the
Mortgage Loans shall be delivered to the Master Servicer or the Trustee, as
designated by the Trustee, at the address set forth in Section 8 hereof. All
remittances required to be made to the Trustee, as the successor in interest
to the Assignor under the 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 2006-5 Acct # 507198670
(d) Monthly Reporting
Notwithstanding anything to the contrary in the 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 warrants and represents to and covenants with, the
Assignor, the Servicer and the Trust as of the date hereof that:
(a) The Assignee is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) The Assignee has full power and authority to execute, deliver
and perform its obligations under this Agreement. The execution by the
Assignee of this Agreement is in the ordinary course of the Assignee's
business and will not conflict with, or result in a breach of, any of
the terms, conditions or provisions of the Assignee's charter or bylaws
or any legal restriction, or any material agreement or instrument to
which the Assignee is now a party or by which it is bound, or result in
the violation of any law, rule, regulation, order, judgment or decree to
which the Assignee or its property is subject. The execution, delivery
and performance by the Assignee of this Agreement have been duly
authorized by all necessary corporate action on part of the Assignee.
This Agreement has been duly executed and delivered by the Assignee,
and, upon the due authorization, execution and delivery by the Assignor,
the Servicer and the Master Servicer, will constitute the valid and
legally binding obligation of the Assignee, enforceable against the
Assignee in accordance with its terms except as enforceability may be
limited by bankruptcy, reorganization, insolvency, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights
generally, and by general principles of equity regardless of whether
enforceability is considered in a proceeding in equity or at law;
(c) No consent, approval, order or authorization of, or
declaration, filing or registration with, any governmental entity is
required to be obtained or made by the Assignee in connection with the
execution, delivery or performance by the Assignee of this Agreement or
the consummation by it of the transaction contemplated hereby; and
(d) There is no action, suit, proceeding or investigation pending
or threatened against the Assignee, before any court, administrative
agency or other tribunal, which would draw into question the validity of
this Agreement, or which, either in any one instance or in the
aggregate, is likely to result in any material adverse change in the
ability of the Assignee to perform its obligations under this Agreement,
and the Assignee is solvent.
5. Representations and Warranties of the Assignor.
The Assignor warrants and represents to the Assignee and the Trust
as of date hereof that:
(a) The Assignor is the sole owner of record and holder of the
Mortgage Loans and the indebtedness evidenced by each Mortgage Note. The
Mortgage Loans are not assigned or pledged, and the Assignor has good,
indefeasible and marketable title thereto, and has full right to
transfer and sell the Mortgage Loans to the Assignee free and clear of
any encumbrance, equity, participation interest, lien, pledge, charge,
claim or security interest, and has full right and authority subject to
no interest or participation of, or agreement with, any other party, to
sell and assign each Mortgage Loan pursuant to this Agreement and
following the sale of each Mortgage Loan, the Assignee will own such
Mortgage Loan free and clear of any encumbrance, equity, participation
interest, lien, pledge, charge, claim or security interest. The Assignor
intends to relinquish all rights to possess, control and monitor the
Mortgage Loans;
(b) The Assignor has not waived the performance by any Mortgagor
of any action, if such Mortgagor's failure to perform such action would
cause the Mortgage Loan to be in default, nor has the Servicer waived
any default resulting from any action or inaction by such Mortgagor;
(c) With respect to the Mortgage Loans, 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 and disclosure laws, all applicable
predatory and abusive lending laws or unfair and deceptive practices
laws applicable to the Mortgage Loans, including, without limitation,
any provisions related to Prepayment Premiums, have been complied with,
the consummation of the transactions contemplated hereby will not
involve the violation of any such laws or regulations; and
(d) With respect to the Mortgage Loans, none of the Mortgage Loans
are (a) subject to the Home Ownership and Equity Protection Act of 1994
or (b) classified as "high cost," "threshold," "covered" or "predatory"
loans under any other applicable federal, state or local law (or a
similarly classified loan using different terminology under a law
imposing heightened regulatory scrutiny or additional legal liability
for residential mortgage loans having high interest rates, points and/or
fees).
6. Remedies for Breach of Representations and Warranties of the
Assignor.
The Assignor hereby acknowledges and agrees that in the event of
any breach of the representations and warranties made by the Assignor set
forth in Section 5 hereof or in Section 2 of the Representations and
Warranties Agreement that materially and adversely affects the value of the
Mortgage Loans or the interest of the Assignee or the Trust therein, within
sixty (60) days of the earlier of either discovery by or notice to the
Assignor of such breach of a representation or warranty, it shall cure,
purchase, cause the purchase of, or substitute for the applicable Mortgage
Loan in the same manner and subject to the conditions set forth in Section 3
of the Representations and Warranties Agreement.
7. Continuing Effect. Except as contemplated hereby, the Servicing
Agreement and Sale Agreement shall remain in full force and effect in
accordance with their respective terms.
8. Notices. Any notices or other communications permitted or
required hereunder or under the Servicing Agreement or 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 Servicer,
Avelo Mortgage, L.L.C.
000 X. Xxx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: President and General Counsel
or such other address as may hereafter be furnished by the Servicer;
(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 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 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 address as may hereafter be furnished by the Assignor.
9. 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.
10. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Servicing
Agreement.
11. Trustee Capacity. It is expressly understood and agreed by the
parties hereto that (i) this Agreement is executed and delivered by U.S. Bank
National Association, not individually or personally but solely on behalf of
GSAA Home Equity Trust 2006-5, 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 2006-5,
(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 2006-5, or be liable for the breach or failure of any
obligation, representation, warranty or covenant made or undertaken by the
GSAA Home Equity Trust 2006-5 under this Agreement, the Trust Agreement or any
related document.
12. Miscellaneous.
(a) This Agreement shall be construed in accordance with the laws
of the State of New York, without regard to conflicts of law principles,
and the obligations, rights and remedies of the parties hereunder shall
be determined in accordance with such laws.
(b) No term or provision of this Agreement may be waived or
modified unless such waiver or modification is in writing and signed by
the party against whom such waiver or modification is sought to be
enforced, with the prior written consent of the Trustee.
(c) This Agreement shall inure to the benefit of (i) the
successors and assigns of the parties hereto and (ii) the Trust
(including the Trustee and the Master Servicer acting on the Trust's
behalf). Any entity into which the Assignor or Assignee may be merged or
consolidated shall, without the requirement for any further writing, be
deemed Assignor, or Assignee, respectively, hereunder.
(d) Each of this Agreement and the Servicing Agreement shall
survive the conveyance of the Mortgage Loans to the Trust and the
assignment of the purchase agreements and the Servicing Agreement (to
the extent assigned hereunder) by the Assignor to the Assignee and by
Assignee to the Trust and nothing contained herein shall supersede or
amend the terms of the purchase agreements and the Servicing Agreement.
(e) In the event that any provision of this Agreement conflicts
with any provision of the purchase agreements or the Servicing Agreement
with respect to the Mortgage Loans, the terms of this Agreement shall
control.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized officers as of the date first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
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Name: Xxxxxxxx Xxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By: /s/ Xxxxxxxxx X'Xxxxx-Xxxxxxx
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Name: Xxxxxxxxx X'Xxxxx-Xxxxxxx
Title: Vice President
AVELO MORTGAGE, L.L.C. (Servicer)
By: /s/ J. Xxxxxx Xxxxxxx
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Name: J. Xxxxxx Xxxxxxx
Title: President
Acknowledged and Agreed:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
Conduit/Avelo Step 2 AAR
EXHIBIT A
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
A-1
