EXHIBIT 99.5
EXECUTION COPY
==============================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
XXXXXXX XXXXX MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
and
FIRST NATIONAL BANK OF NEVADA,
as Responsible Party
Dated as of
March 30, 2006
==============================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment
Agreement") made this 30th day of March, 2006, among First National Bank of
Nevada (the "Responsible Party"), GS Mortgage Securities Corp., as assignee
(the "Assignee") and Xxxxxxx Sachs Mortgage Company, as assignor (the
"Assignor").
WHEREAS, the Assignor and the Responsible Party have entered into
the Amended and Restated Master Mortgage Loan Purchase and Interim Servicing
Agreement, dated as of November 1, 2005 (the "Sale Agreement") pursuant to
which the Responsible Party sold certain mortgage loans on a
servicing-released basis listed on the mortgage loan schedule attached as an
exhibit to the Master Servicing and Trust Agreement (as defined below);
WHEREAS, 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 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 March 1, 2006 (the "Trust Agreement"), among GS Mortgage Securities
Corp., as depositor, Deutsche Bank National Trust Company, as a custodian,
U.S. Bank National Association, as a custodian and as trustee (the "Trustee")
and JPMorgan Chase Bank, National Association, as master servicer, securities
administrator and a custodian (the "Master Servicer"), the Assignee will
transfer the Mortgage Loans to the Trustee, together with the Assignee's
rights under the Sale 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 and the Sale 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 Agreement, to the extent relating to the Mortgage Loans, from
and after the date hereof, and the Responsible Party hereby acknowledges such
assignment and assumption and hereby agrees to the release of the Assignor
from any obligations under the Sale 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
Agreement.
(c) The Responsible Party and the Assignor shall have the right to
amend, modify or terminate the Sale Agreement without the joinder of the
Assignee with respect to
mortgage loans not conveyed to the Assignee hereunder; provided, however, that
such amendment, modification or termination shall not affect or be binding on
the Assignee.
2. Accuracy of Sale Agreement. The Responsible Party and the
Assignor represent and warrant to the Assignee that (i) attached hereto as
Exhibit 2 is a true, accurate and complete copy of the Sale Agreement, (ii)
the Sale Agreement is in full force and effect as of the date hereof, (iii)
except as provided in this Agreement, the Sale Agreement has not been amended
or modified in any respect and (iv) to the best of the Assignor's knowledge,
no notice of termination has been given to the Responsible Party under the
Sale Agreement. The Responsible Party, in its capacity as seller under the
Sale Agreement, further represents and warrants that the representations and
warranties contained in Sections 7.01 and 7.02 of the Sale Agreement are true
and correct as of the Closing Date (as such term is defined in the Sale
Agreement).
3. Modification of the Sale Agreement. Only in so far as it
relates to the Mortgage Loans, the Responsible Party and the Assignor hereby
amend the Sale Agreement as follows:
(a) Beginning with the sixth sentence in the second paragraph of
Subsection 11.13 through the end of such paragraph, such language shall be
deleted in its entirety and replaced with the following:
"The Company shall use its best efforts to dispose of the REO Property
as soon as possible and shall sell such REO Property in any event within one
year after title has been taken to such REO Property, unless (i) a REMIC
election has not been made with respect to the arrangement under which the
Mortgage Loans and the REO Property are held, and (ii) the Company determines,
and gives an appropriate notice to the Purchaser to such effect, that a longer
period is necessary for the orderly liquidation of such REO Property; provided
however, that the Company agrees not to sell or dispose of any such Mortgage
Loan to a person who acquires such Mortgage Loan using a purchase money
mortgage. If a period longer than one year is permitted under the foregoing
sentence and is necessary to sell any REO Property, the Company shall report
monthly to the Purchaser as to the progress being made in selling such REO
Property, and provided further, that if the Company is unable to sell such REO
Property within three years of acquisition, the Company shall obtain an
extension from the Internal Revenue Servicer."
(b) a new section, Section 33, will be added immediately following
Section 32 which shall read as follows:
"SECTION 33. Third Party Beneficiary.
JPMorgan Chase Bank, National Association as master servicer and
securities administrator under the Master Servicing and Trust Agreement, dated
as of March 1, 2006, among GS Mortgage Securities Corp., U.S. Bank National
Association, Deutsche Bank National Trust Company and JPMorgan Chase Bank,
National Association, shall be considered a third party beneficiary to this
Agreement entitled to all of the rights and benefits accruing to it as if it
were a direct party to this Agreement."
2
4. Recognition of Assignee. From and after the date hereof, the
Responsible Party shall note the transfer of the Mortgage Loans to the
Assignee in its books and records, shall recognize the Assignee as the owner
of the Mortgage Loans. It is the intention of the Assignor, Assignee and
Responsible Party that the Sale Agreement shall be binding upon and inure to
the benefit of the Responsible Party 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
Responsible Party other than those contained in the Sale Agreement or this
Assignment Agreement.
(b) Authority. The Assignee hereto represents and warrants that it
is duly and legally authorized to enter into this Assignment Agreement and to
perform its obligations hereunder and under the Sale Agreement.
(c) Enforceability. The Assignee hereto represents and warrants
that this Assignment Agreement has been duly authorized, executed and
delivered by it and (assuming due authorization, execution and delivery
thereof by each of the other parties hereto) constitutes its legal, valid and
binding obligation, enforceable in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, reorganization or other
similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (regardless of whether such enforcement is
considered in a proceeding in equity or at law).
3
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 Agreement and this
Assignment Agreement.
(b) Enforceability. This Assignment Agreement has been duly
executed and delivered by the Assignor, and, assuming due authorization,
execution and delivery by each of the other parties hereto, constitutes a
legal, valid, and binding agreement of the Assignor, enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting creditors' rights generally and to
general principles of equity regardless of whether enforcement is sought in a
proceeding in equity or at law.
(c) No Consent. The execution, delivery and performance by the
Assignor of this Assignment Agreement and the consummation of the transactions
contemplated hereby do not require the consent or approval of, the giving of
notice to, the registration with, or the taking of any other action in respect
of, any state, federal or other governmental authority or agency, except such
as has been obtained, given, effected or taken prior to the date hereof.
(d) Authorization; No Breach. The execution and delivery of this
Assignment Agreement have been duly authorized by all necessary corporate
action on the part of the Assignor; neither the execution and delivery by the
Assignor of this Assignment Agreement, nor the consummation by the Assignor of
the transactions herein contemplated, nor compliance by the Assignor with the
provisions hereof, will conflict with or result in a breach of, or constitute
a default under, any of the provisions of the governing documents of the
Assignor or any law, governmental rule or regulation or any material judgment,
decree or order binding on the Assignor or any of its properties, or any of
the provisions of any material indenture, mortgage, deed of trust, contract or
other instrument to which the Assignor is a party or by which it is bound.
(e) Actions; Proceedings. There are no actions, suits or
proceedings pending or, to the knowledge of the Assignor, threatened, before
or by any court, administrative agency, arbitrator or governmental body (A)
with respect to any of the transactions contemplated by this Assignment
Agreement or (B) with respect to any other matter that in the judgment of the
Assignor will be determined adversely to the Assignor and will, if determined
adversely to the Assignor, materially adversely affect its ability to perform
its obligations under this Assignment Agreement.
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
4
cost home," "covered," "high-cost," "high-risk home," or "predatory" loan
under any other applicable state, federal or local law.
(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 Agreement to the date hereof that would cause any of the
representations and warranties relating to such Mortgage Loan set forth in
Section 7.02 of the Sale 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 Responsible Party in the Sale
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
5
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 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
Agreement or, in limited circumstances (as set forth below), substitute such
mortgage loan for a Substitute Mortgage Loan (as defined below).
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, 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 the Responsible Party has breached a representation
or warranty under the Sale Agreement that is substantially identical to, or
covers the same matters as, a representation or warranty breached by the
Assignor hereunder, the Assignee shall first proceed against the Responsible
Party to cure such breach or purchase such mortgage loan from the Trust. If
the Responsible Party does not within sixty (60) days after notification of
the breach, take steps to cure such breach (which may include certifying to
progress made and requesting an extension of the time to cure such breach, as
permitted under the Sale Agreement) or purchase the Mortgage Loan, the Trustee
shall be entitled to enforce the obligations of the Assignor 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 Responsible Party has breached a representation and
warranty and is obligated to repurchase such Mortgage Loan under the Sale
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 Responsible Party to cure any
breach or repurchase such Mortgage Loan under the terms of the Sale Agreement
with respect to such Mortgage Loan. In the event of a repurchase 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 Agreement,
but only insofar as such Sale Agreement relates to such Mortgage Loan.
Except as specifically set forth herein, the Assignee shall have
no responsibility to enforce any provision of this Assignment Agreement, to
oversee compliance hereof or to take notice of any breach or default thereof.
6
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 7.02 of the Sale 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 on 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
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 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
7
return receipt requested or transmitted by telex, telegraph or telecopier
and confirmed by a similar mailed writing, to:
(a) in the case of the Responsible Party,
First National Bank of Nevada
00000 X. Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Secondary Marketing
With a copy to:
First National Bank of Nevada
00000 X. Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: General Counsel
or such other address as may hereafter be furnished by the Responsible Party;
(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
8
(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 Agreement or
Trust Agreement, as applicable.
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.
9
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/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxx Xxxx
--------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
FIRST NATIONAL BANK OF NEVADA
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: SVP, Secondary Marketing
FNBN Step 1 AAR
EXHIBIT 1
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
1-1
EXHIBIT 2
Sale Agreement
[On File with the Depositor]
2-1
