Exhibit 99.2
EXECUTION COPY
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GSAA HOME EQUITY TRUST 2006-7
ASSET-BACKED CERTIFICATES
SERIES 2006-7
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
XXXXXX'X GATE RESIDENTIAL MORTGAGE TRUST,
as a Seller
and
PHH MORTGAGE CORPORATION
as a Seller and as Servicer
Dated as of
April 28, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this
"Assignment Agreement") made this 28th day of April, 2006, among PHH Mortgage
Corporation (formerly known as Cendant Mortgage Corporation) (the "Servicer"),
Xxxxxx'x Gate Residential Mortgage Trust (formerly known as Cendant
Residential Mortgage Trust) ("Xxxxxx'x Gate" and, together with the Servicer,
the "PHH Parties"), GS Mortgage Securities Corp., as assignee (the "Assignee")
and Xxxxxxx Xxxxx Mortgage Company, as assignor (the "Assignor").
WHEREAS, the Assignor 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 the Assignor certain mortgage loans
listed on the mortgage loan schedule attached as an exhibit to the Sale and
Servicing 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 are subject to the provisions of the Sale and
Servicing Agreement and 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 April 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, N.A., as master servicer (in
such capacity, the "Master Servicer"), and securities administrator, the
Assignee will transfer the Mortgage Loans to the Trustee, together with the
Assignee's rights under the Sale and 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 Mortgage
Loans, the Sale and 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),
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 the date hereof, 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 the
date hereof, 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. Modification of the Servicing Agreement. Only in so far
as it relates to the Mortgage Loans, the PHH Parties and the Assignor hereby
amend the Sale and Servicing Agreement as follows:
(a) the defined term "Repurchase Price" in Article I,
Section 1.01 will be deleted in its entirety and replaced with the following:
"Repurchase Price": As to (a) any Defective Mortgage Loan
required to be repurchased hereunder with respect to which a breach occurred
or (b) any Mortgage Loan required to be repurchased pursuant to Section 3.04
and/or Section 7.02, an amount equal to the Unpaid Principal Balance of such
Mortgage Loan at the time of repurchase; plus (2) interest on such Mortgage
Loan at the applicable Note Rate from the last date through which interest has
been paid and distributed to the Purchaser hereunder to the date of
repurchase; plus (3) with respect to any Mortgage Loan included in a
Securitization Transaction, damages incurred by the Purchaser or its assignee
including the trust in any securitization in connection with any violation by
such Mortgage Loan of any predatory or abusive lending law; minus (4) any
amounts received in respect of such Defective Mortgage Loan which are being
held in the Collection Account for future remittance.
3. 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 April 28, 2006 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).
4. Recognition of Assignee. 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
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Servicing Agreement shall be binding upon and inure to the benefit of the PHH
Parties and the Assignee and their successors and assigns.
5. 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, 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.
(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 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 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
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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.
7. Additional Representations and Warranties of the Assignor
With Respect to the Mortgage Loans. The Assignor hereby represents and
warrants to the Assignee as follows:
(a) Prior Assignments; Pledges. Except for the sale to the
Assignee, the Assignor has not assigned or pledged any Mortgage Note or the
related Mortgage or any interest or participation therein.
(b) Releases. The Assignor has not satisfied, canceled or
subordinated in whole or in part, or rescinded any Mortgage, and the Assignor
has not released the related Mortgaged Property from the lien of any Mortgage,
in whole or in part, nor has the Assignor executed an instrument that would
effect any such release, cancellation, subordination, or rescission. The
Assignor has not released any Mortgagor, in whole or in part, except in
connection with an assumption agreement or other agreement approved by the
related federal insurer, to the extent such approval was required.
(c) Compliance with Applicable Laws. With respect to each
Mortgage Loan, 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, predatory
and abusive lending or disclosure laws applicable to such Mortgage Loan,
including without limitation, any provisions relating to prepayment charges,
have been complied with.
(d) High Cost. No Mortgage Loan is categorized as "High
Cost" pursuant to the then-current Standard & Poor's Glossary for File Format
for LEVELS(R) Version 5.6(d), Appendix E, as revised from time to time and in
effect as of the Original Purchase Date. Furthermore, none of the Mortgage
Loans sold by the Seller are classified as (a) a "high cost mortgage" loan
under the Home Ownership and Equity Protection Act of 1994 or (b) a "high cost
home," "covered," "high-cost," "high-risk home," or "predatory" loan under any
other applicable state, federal or local law.
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(e) Georgia Fair Lending Act. No Mortgage Loan is secured by
a property in the state of Georgia and originated between October 1, 2002 and
March 7, 2003.
(f) Credit Reporting. The Assignor will cause to be fully
furnished, in accordance with the Fair Credit Reporting Act and its
implementing regulations, accurate and complete information (i.e., favorable
and unfavorable) on Mortgagor credit files to Equifax, Experian and Trans
Union Credit Information Company (three of the credit repositories), on a
monthly basis.
(g) Bring Down. To the Assignor's knowledge, with respect to
each Mortgage Loan, no event has occurred from and after the closing date set
forth in such Sale and Servicing Agreement to the date hereof that would cause
any of the representations and warranties relating to such Mortgage Loan set
forth in Section 3.03 of the Sale and Servicing Agreement to be untrue in any
material respect as of the date hereof as if made on the date hereof. With
respect to those representations and warranties which are made to the best of
the Assignor's knowledge, if it is discovered by the Assignor that the
substance of such representation and warranty is inaccurate, notwithstanding
the Assignor's lack of knowledge with respect to the substance of such
representation and warranty, such inaccuracy shall be deemed a breach of the
applicable representation and warranty.
It is understood and agreed that the representations and
warranties set forth in Sections 6 and 7 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 8 to repurchase or, in limited circumstances, substitute 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 Sections 6 and 7. It is further understood and agreed that,
except as specifically set forth in Sections 6 and 7, the Assignor shall be
deemed not to have made the representations and warranties in Section 7(g)
with respect to, and to the extent of, representations and warranties made, as
to the matters covered in Section 7(g), by the PHH Parties in the Sale and
Servicing Agreement (or any officer's certificate delivered pursuant thereto).
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 Sections 6 and 7, and no other
affiliate of the Assignor has made any representations or warranties of any
kind to the Assignee.
8. 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
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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 Sale
and Servicing Agreement or, in limited circumstances (as set forth below),
substitute such mortgage loan for a Substitute Mortgage Loan (as defined
below). 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 sixty (60) days of discovery of such
Qualification Defect.
The Assignor shall have the option, but is not obligated, to
substitute a Substitute Mortgage Loan for a Mortgage Loan, rather than
repurchase the Mortgage Loan as provided above, by removing such Mortgage Loan
and substituting in its place a Substitute Mortgage Loan or Loans and
providing the Substitution Adjustment Amount, if any, provided that any such
substitution shall be effected not later than ninety (90) days from the date
on which it is notified of the breach.
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 to cure such breach or purchase such mortgage loan from the
Trust. If such 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 Trustee shall be entitled to enforce the obligations of the Assignor
or the Servicer, as applicable, hereunder to cure such breach or to purchase
or substitute for the Mortgage Loan from the Trust.
In addition, the Assignor shall have the option, but is not
obligated, to substitute a Substitute Mortgage Loan for a Mortgage Loan with
respect to which the Servicer has breached a representation and warranty and
is obligated to repurchase such Mortgage Loan under the Sale and Servicing
Agreement, by removing such Mortgage Loan and substituting in its place a
Substitute Mortgage Loan or Loans, provided that any such substitution shall
be effected not later than ninety (90) days from the date on which it is
notified of the breach.
In the event of any repurchase or substitution of any
Mortgage Loan by the Assignor hereunder, the Assignor shall succeed to the
rights of the Assignee to enforce the obligations of the Servicer to cure any
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 or substitution of any Mortgage Loan by the Assignor, the Assignee
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 and Servicing Agreement, but only insofar as such Sale and Servicing
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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For purposes of this Section, "Deleted Mortgage Loan" and
"Substitute Mortgage Loan" shall be defined as set forth below.
"Deleted Mortgage Loan" A Mortgage Loan which is to be,
pursuant to this Section 8, replaced or to be replaced by the Assignor with a
Substitute Mortgage Loan.
"Substitute Mortgage Loan" A Mortgage Loan substituted by
the Assignor for a Deleted Mortgage Loan which must, on the date of such
substitution, (i) have an outstanding principal balance, after deduction of
all scheduled payments due in the month of substitution (or in the case of a
substitution of more than one Mortgage Loan for a Deleted Mortgage Loan, an
aggregate principal balance), not in excess of the Stated Principal Balance of
the Deleted Mortgage Loan; (ii) be accruing interest at a rate no lower than
and not more than 2% per annum higher than that of the Deleted Mortgage Loan;
(iii) have a remaining term to maturity not greater than and not more than one
year less than that of the Deleted Mortgage Loan; (iv) be of the same type as
the Deleted Mortgage Loan (i.e., fixed rate or adjustable rate with same
periodic rate cap, lifetime rate cap, and index); and (v) comply with each
representation and warranty set forth in Section 3.03 of the Sale and
Servicing Agreement.
"Substitution Adjustment Amount" means with respect to any
Mortgage Loan, the amount remitted by GSMC on the applicable Distribution Date
which is the difference between the outstanding principal balance of a
Substitute Mortgage Loan as of the date of substitution and the outstanding
principal balance of the Deleted Mortgage Loan as of the date of substitution.
9. Continuing Effect. Except as contemplated hereby, the
Sale and Servicing Agreement shall remain in full force and effect in
accordance with its terms.
10. 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.
11. 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 prepaid, and return receipt
requested or transmitted by telex, telegraph or telecopier and confirmed by a
similar mailed writing, to:
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(a) in the case of the PHH Parties,
PHH Mortgage Corporation
0000 Xxxxxxxxxx Xxxx,
Xx. Xxxxxx, Xxx Xxxxxx 00000
Attention: Vice President of Servicing
or such other address as may hereafter be furnished by the PHH Parties;
(b) 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
(c) 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.
12. 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.
13. Definitions. Any capitalized term used but not defined
in this Assignment Agreement has the meaning assigned thereto in the Sale and
Servicing Agreement.
14. 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/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxx Xxxxx
---------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
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 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
Sale and Servicing Agreement
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[On File with the Depositor]
2-1
