Exhibit 99.11
EXECUTION COPY
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
and
COUNTRYWIDE HOME LOANS SERVICING, LP
as Servicer
Dated as of
January 27, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated January 27,
2006 (this "Agreement"), among Xxxxxxx Sachs Mortgage Company ("Assignor"), GS
Mortgage Securities Corp. ("Assignee") and Countrywide Home Loans Servicing LP
(the "Company").
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"), and (b) solely insofar as it relates to the
Mortgage Loans, that certain Flow Servicing Agreement, dated as of May 1, 2005
(the "Servicing Agreement"), by and between the Assignor, as owner (the
"Owner") and the Company. 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 Trust Agreement (as defined below).
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, (iii) the rights and obligations of the
Owner under the following sections of the Servicing Agreement: Section 6.01(b)
(relating to the Owner's right to terminate the Company), Section 4.09
(relating to the Owner's right to receive information from the Servicer) and
Sections 13.13(i) and 13.15 (relating the Owner's obligation to execute
certain confidentiality agreements) or (iv) any rights of the Assignor under
the Commitment Letter, dated as of January 27, 2006 (the "Commitment Letter")
between the Owner and the Company, which rights shall survive the execution
and delivery of this Agreement.
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, notwithstanding anything to the
contrary contained in the Commitment Letter, 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 Company.
From and after the date hereof (the "Securitization Closing Date"),
the Company shall and does hereby recognize that the Assignee will transfer
the Mortgage Loans and assign its rights under the Servicing Agreement (solely
to the extent set forth herein) and this Agreement to U.S. Bank National
Association, as trustee (including its successors in interest and any
successor trustees under the Trust Agreement, the "Trustee"), of the GSAA Home
Equity Trust 2006-1 (the "Trust") created pursuant to a Master Servicing and
Trust Agreement, dated as of January 1, 2006 (the "Trust Agreement"), among
the Assignee, the Trustee, JPMorgan Chase Bank, N.A., as a custodian, Deutsche
Bank National Trust Company, as a custodian and JPMorgan Chase Bank, N.A., as
master servicer (including its successors in interest and any successor
servicer under the Trust Agreement, the "Master Servicer") and as securities
administrator. The Company hereby acknowledges and agrees that from and after
the date hereof (i) the Trust will be the owner of the Mortgage Loans and the
Company 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
Company 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 6.03 of the related
Purchase Agreement, and shall be entitled to enforce all of the obligations of
the Company thereunder insofar as they relate to the Mortgage Loans, including
without limitation, the remedies for breaches of representations and
warranties set forth in Article 10 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 Company 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 Company 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 Company's performance under
the Servicing Agreement with respect to the Mortgage Loans without the prior
written consent of the Trustee.
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3. Representations and Warranties of the Company.
The Company warrants and represents to and covenants with, the
Assignor, the Assignee and the Trust as of the date hereof that:
(a) The Company is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation;
(b) The Company has full power and authority to execute,
deliver and perform its obligations under this Agreement and has full
power and authority to perform its obligations under this Agreement
and the Servicing Agreement. The execution by the Company of this
Agreement is in the ordinary course of the Company's business and
will not conflict with, or result in a breach of, any of the terms,
conditions or provisions of the Company's charter or bylaws or any
legal restriction, or any material agreement or instrument to which
the Company 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 Company or its property is subject. The execution, delivery
and performance by the Company of this Agreement have been duly
authorized by all necessary corporate action on part of the Company.
This Agreement has been duly executed and delivered by the Company,
and, upon the due authorization, execution and delivery by the
Assignor and the Assignee, will constitute the valid and legally
binding obligation of the Company, enforceable against the Company 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 Company in connection with the
execution, delivery or performance by the Company of this Agreement
or the consummation by it of the transaction contemplated hereby;
(d) The Company shall establish a Custodial Account and an
Escrow Account under the Servicing Agreement in favor of the Trust
with respect to the Mortgage Loans separate from the Custodial
Account and Escrow Account previously established under the Servicing
Agreement in favor of the Assignor;
(e) There is no action, suit, proceeding or investigation
pending or threatened against the Company, before any court,
administrative agency or other tribunal, which would draw into
question the validity of this Agreement or the Servicing 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
Company to perform its obligations under this Agreement or the
Servicing Agreement, and the Company is solvent;
(f) The Company has serviced the Mortgage Loans in accordance
with the Servicing Agreement and has provided accurate "paid
through" data (assuming the correctness of all "paid
through" data provided by the Assignor to the Company at the
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time the Company began servicing the Mortgage Loans) with respect to
the Mortgage Loans to the Assignor;
(g) Except as reflected in the "paid through" data delivered
to the Assignor (assuming the correctness of all "paid through" data
provided by the Assignor to the Company at the time the Company began
servicing the Mortgage Loans), there is no payment default existing
under any Mortgage or any Mortgage Note as of the Securitization
Closing Date; and
(h) To the Company's knowledge, there is no non-payment
default existing under any Mortgage or Mortgage Note, or any event
which, with the passage of time or with notice and the termination of
any grace or cure period, would constitute a non-payment default,
breach, violation or event which would permit acceleration as of the
Securitization Closing Date.
Pursuant to Section 13.13 of the Servicing Agreement, the Company
hereby represents and warrants, for the benefit of the Assignor, the Assignee
and the Trust, that the representations and warranties set forth in Article X
of the Servicing Agreement are true and correct as of the date hereof as if
such representations and warranties were made on the date hereof.
4. Representations and Warranties of the Assignor.
The Assignor warrants and represents to the Assignee and the Trust as
of date hereof that:
(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) No Waiver. 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 Company waived any default resulting from any action or
inaction by such Mortgagor;
(d) 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
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such Mortgage Loan, including without limitation, any provisions
relating to prepayment charges, have been complied with;
(e) High Cost. With respect to the Mortgage Loans, 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(c), 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;
(f) 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;
(g) Qualified Mortgage Loan. Each Mortgage Loan is a
"qualified mortgage" under Section 860G(a)(3) of the Internal Revenue
Code of 1986, as amended; and
(h) 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; and
(i) Prepayment Premiums. To the Assignor's knowledge, no
Mortgage Loan originated on or after October 1, 2002 will impose a
prepayment premium for a term in excess of three years. Any loans
originated prior to such date, and any non-subprime loans, will not
impose prepayment penalties in excess of five years.
5. 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 4 hereof or in Section 1 of the Representations and Warranties
Agreement, dated as of January 27, 2006, between the Assignor and Assignee
(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 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 2
of the Representations and Warranties Agreement.
6. 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.
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(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 Servicer acting on the Trust's
behalf). Any entity into which the Assignor, Assignee or Company may
be merged or consolidated shall, without the requirement for any
further writing, be deemed Assignor, Assignee or Company,
respectively, hereunder.
(d) Each of this Agreement and the Servicing Agreement shall
survive the conveyance of the Mortgage Loans 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) This Agreement may be executed simultaneously in any
number of counterparts. Each counterpart shall be deemed to be an
original and all such counterparts shall constitute one and the same
instrument.
(f) 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.
(g) Capitalized terms used in this Agreement (including the
exhibits hereto) but not defined in this Agreement shall have the
meanings given to such terms in the Purchase Agreements or the
Servicing Agreement, as applicable.
[SIGNATURE PAGE FOLLOWS]
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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
XXXXXXX XXXXX MORTGAGE COMPANY, a New
York limited partnership
By: XXXXXXX SACHS REAL ESTATE FUNDING
CORP., a New York corporation, as General
Partner
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Managing Director
COUNTRYWIDE HOME LOANS SERVICING LP, a
Texas limited partnership
(Servicer)
By: COUNTRYWIDE GP, INC., its general
partner
By: /s/ Xxxxxx X. Xxx
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Name: Xxxxxx X. Xxx
Title: Senior Vice President
Conduit Step 1 AAR
EXHIBIT A
Mortgage Loan Schedule
[On File with The Securities Administrator as provided by The Depositor]
A-1
