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
COUNTRYWIDE HOME LOANS, INC.,
as Countrywide
and
COUNTRYWIDE HOME LOANS SERVICING LP,
as Servicer
and as acknowledged by
XXXXX FARGO BANK, N.A.,
as Master Servicer
Dated as of
January 27, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this 27th
day of January, 2006 (this "Assignment Agreement"), among Countrywide Home
Loans Servicing LP, (the "Servicer"), Countrywide Home Loans, Inc.
("Countrywide"), U.S. Bank National Association, not in its individual
capacity but solely as trustee on behalf of GSAA Home Equity Trust 2006-1 (the
"Assignee" or "Trustee"), and GS Mortgage Securities Corp., a Delaware
corporation (the "Assignor" or "Depositor"), and as acknowledged by JPMorgan
Chase Bank, N.A., as master servicer (the "Master Servicer").
WHEREAS, Xxxxxxx Xxxxx Mortgage Company ("GSMC") and the Servicer
have entered into the Servicing Agreement, dated as of July 1, 2004 (the
"Servicing Agreement") as amended by that certain Amendment Reg AB, dated as
of January 1, 2006 ("Amendment Reg AB" and, together with the Servicing
Agreement, the "Servicing Agreement"), and GSMC and Countrywide have entered
into the Master Mortgage Loan Purchase Agreement, dated as of July 1, 2004, as
amended by that Amendment Reg AB (as amended, the "Sale Agreement"), pursuant
to which Countrywide sold to GSMC certain mortgage loans listed on the
mortgage loan schedule attached to the related Purchase Confirmation (as
defined in the Sale Agreement);
WHEREAS, GSMC has assigned and conveyed certain mortgage loans
(the "Mortgage Loans"), which Mortgage Loans are subject to the provisions of
the Servicing Agreement and Sale Agreement, to the Assignor pursuant to an
Assignment, Assumption and Recognition Agreement, dated as of January 27, 2006
(the "GSMC Assignment Agreement");
WHEREAS, the Assignee has agreed on certain terms and conditions
to purchase from the Assignor the Mortgage Loans acquired by the Assignor
pursuant to the GSMC Assignment Agreement, which Mortgage Loans are listed on
the mortgage loan schedule attached as Exhibit 1 hereto (the "Mortgage Loan
Schedule"); and
WHEREAS, pursuant to a Master Servicing and Trust Agreement, dated
as of January 1, 2006 (the "Trust Agreement"), among the Depositor, the
Trustee, Deutsche Bank National Trust Company, as a custodian, and JPMorgan
Chase Bank, N.A., as a custodian, as master servicer (the "Master Servicer")
and as securities administrator, the Assignor will transfer the Mortgage Loans
to the Assignee, together with the Assignor's rights and obligations under the
Servicing Agreement and the Sale Agreement, to the extent relating to the
Mortgage Loans (other than the rights of the Assignor to indemnification
thereunder).
NOW THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Assignment and Assumption. (a) The Assignor hereby assigns to
the Assignee, as of the date hereof, all of its right, title and interest in
and to the Mortgage Loans and the GSMC Assignment Agreement (including without
limitation the rights and obligations of GSMC under the Servicing Agreement
and the Sale Agreement to the extent assigned to the Assignor under the GSMC
Assignment Agreement) from and after the date hereof, and the Assignee hereby
assumes all of the Assignor's obligations under the Servicing Agreement and
the Sale Agreement, to the extent relating to the Mortgage Loans that arise
from and after January 27, 2006, and the Servicer hereby acknowledges such
assignment and assumption and hereby agrees to the release of the Assignor
from any obligations under the Servicing Agreement from and after January 27,
2006, to the extent relating to the Mortgage Loans and Countrywide 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
January 27, 2006, to the extent relating to the Mortgage Loans.
(b) The Assignor represents and warrants to the Assignee that the
Assignor has not taken any action which would serve to impair or encumber the
Assignor's ownership interest in the Mortgage Loans since the respective dates
of the Servicing Agreement and the Sale Agreement.
(c) The Servicer and the Assignor shall have the right to amend,
modify or terminate the Servicing Agreement without the joinder of the
Assignee with respect to mortgage loans not conveyed to the Assignee hereunder
to the extent permitted by the Servicing Agreement; provided, however, that
such amendment, modification or termination shall not affect or be binding on
the Assignee.
(d) Countrywide 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 to the
extent permitted by the Servicing Agreement; provided, however, that such
amendment, modification or termination shall not affect or be binding on the
Assignee
2. Accuracy of Servicing Agreement. (a) The Servicer 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 Servicing Agreement,
(ii) the Servicing Agreement is in full force and effect as of the date
hereof, (iii) the Servicing Agreement has not been amended or modified in any
respect, except as contemplated herein or as previously disclosed in the GSMC
Assignment Agreement and (iv) no notice of termination has been given to the
Servicer under the Servicing Agreement. The Servicer, in its capacity as
servicer under the Servicing Agreement, further represents and warrants that
the representations and warranties contained in Section 2.1 of the Servicing
Agreement are true and correct as of the Closing Date (as such term is defined
in the Servicing Agreement).
(b) Countrywide and the Assignor represent and warrant to the
Assignee that (i) attached hereto as Exhibit 3 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) the Sale Agreement has not been
amended or modified in any respect and (iv) no notice of termination has been
given to Countrywide under the Sale Agreement. Countrywide, in its capacity as
seller under the Sale Agreement, further represents and warrants that the
representations and warranties contained in Section 3.01 of the Sale Agreement
are true and correct as of the Closing Date (as such term is defined in the
Sale Agreement).
3. Recognition of Assignee.
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(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, Countrywide, the Servicer and Assignee that the Sale Agreement and
the Servicing Agreement shall be binding upon and inure to the benefit of
Countrywide, the Servicer and the Assignee and their successors and assigns,
respectively.
(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 and that the Master
Servicer, acting on behalf of the Trustee as the owner of the Mortgage Loans,
shall have the same rights as were assigned by GSMC, in its capacity as the
original "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 upon the occurrence of an event of default thereunder, the right to
receive all remittances required to be made by the Servicer under the
Servicing Agreement, the right to receive all monthly reports and other data
required to be delivered by the Servicer under the Servicing Agreement and the
right to exercise certain rights of consent and approval relating to actions
taken by the Servicer. Notwithstanding the foregoing, it is understood that
the Servicer shall not be obligated to defend and indemnify and hold harmless
the Master Servicer, the Assignor and the Assignee against any losses,
damages, penalties, fines, forfeitures, judgments and any related costs
including, without limitation, reasonable and necessary legal fees, resulting
from (i) actions or inactions of the Servicer which were taken or ommitted
upon the instruction or direction of the Master Servicer or (ii) the failure
of the Master Servicer to perform the obligations of the Assignee with respect
to the Assignment Agreement or of the "Owner" with respect to the servicing
provisions of the Servicing Agreement as the Master Servicer is required to
perform, as applicable.
(c) All reports and other data required to be delivered by the
Servicer to the "Owner" under the Servicing Agreement shall be delivered to
the Master Servicer or the Trustee, as designated by the Trustee, at the
address set forth in Section 10 hereof. All remittances required to be made to
the Trustee, as the successor in interest to the Assignor under the Servicing
Agreement, shall be made instead to the Master Servicer by wire transfer to
the following account:
JPMorgan Chase Bank, National Association
ABA #: 000000000
For credit to: SAS Clearing
Acct #: 507198670
FFC to: GSAA 2006-1 Acct #507198670
(d) 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),
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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
beginning on the second day of the month immediately preceding month and
ending on the first day of the then current month, (ii) all such information
required pursuant to clause (i)(a) above on a magnetic tape, electronic mail,
or other similar media reasonably acceptable to the Master Servicer and (iii)
all supporting documentation with respect to the information required pursuant
to clause (i)(c) above.
4. Representations and Warranties of the Assignee. The Assignee
hereby represents and warrants to the Assignor as follows:
(a) Decision to Purchase. The Assignee represents and warrants
that it is a sophisticated investor able to evaluate the risks and merits of
the transactions contemplated hereby, and that it has not relied in connection
therewith upon any statements or representations of the Assignor, the Servicer
or Countrywide other than those contained in the Servicing Agreement, 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 Servicing Agreement and 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).
5. Representations and Warranties of the Assignor. The Assignor
hereby represents and warrants to the Assignee as follows:
(a) Organization. The Assignor has been duly organized and is
validly existing as a corporation in good standing under the laws of the State
of Delaware with full power and authority (corporate and other) to enter into
and perform its obligations under the Servicing Agreement, 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.
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(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.
It is understood and agreed that the representations and
warranties set forth in this Section 5 shall survive delivery of the
respective mortgage loan documents to the Assignee or its designee and shall
inure to the benefit of the Assignee and its assigns notwithstanding any
restrictive or qualified endorsement or assignment. Upon the discovery by the
Assignor or the Assignee and its assigns of a breach of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the other parties to this Assignment Agreement, and
in no event later than two (2) Business Days from the date of such discovery.
It is understood and agreed that the obligations of the Assignor set forth in
Section 6 to repurchase a Mortgage Loan constitute the sole remedies available
to the Assignee and its assigns on their behalf respecting a breach of the
representations and warranties contained in this Section 5. It is further
understood and agreed that the Assignor shall be deemed not to have made the
representations and warranties in this Section 5 with respect to, and to the
extent of, representations and warranties made, as to the matters covered in
this Section 5, by Countrywide 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 this Section 5, and no other affiliate of the
Assignor has made any representations or warranties of any kind to the
Assignee.
6. Repurchase of Mortgage Loans. Upon discovery or notice of any
breach by the Assignor of any representation, warranty or covenant under this
Assignment Agreement
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that materially and adversely affects the value of any Mortgage Loan or the
interest of the Assignee therein (it being understood that any such defect or
breach shall be deemed to have materially and adversely affected the value of
the related Mortgage Loan or the interest of the Assignee therein if the
Assignee incurs a loss as a result of such defect or breach), the Assignee
promptly shall request that the Assignor cure such breach and, if the Assignor
does not cure such breach in all material respects within 60 days from the
date on which it is notified of the breach, the Assignee may enforce the
Assignor's obligation hereunder to repurchase such Mortgage Loan from the
Assignee at the Repurchase Price as defined in the Sale Agreement.
Notwithstanding the foregoing, however, if such breach is a Qualification
Defect as defined in the Sale Agreement, such cure or repurchase must take
place within 90 days of discovery of such Qualification Defect.
In the event Countrywide 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 Countrywide. If
Countrywide does not within 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 Agreement) or purchase the Mortgage Loan, the Assignee shall be
entitled to enforce the obligations of the Assignor hereunder to cure such
breach or to purchase the Mortgage Loan from the Trust. In such event, the
Assignor shall succeed to the rights of the Assignee to enforce the
obligations of Countrywide to cure such 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 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 the 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.
7. Termination; Optional Clean-Up Call. In connection with the
Trust Agreement, the Master Servicer hereby agrees to the following
obligations described below. For purposes of this Section 7 only, any
capitalized term used but not defined in this Assignment Agreement has the
same meaning assigned thereto in the Trust Agreement.
If the Depositor exercises its option to solicit bids and
terminates the Trust Fund pursuant to Section 11.01(a) of the Trust Agreement,
by no later than the 10th day of the month of the final distribution, the
Depositor shall notify the Trustee and the Securities Administrator of the
final Distribution Date and of the applicable repurchase price of the Mortgage
Loans and REO Properties.
In the event that the Master Servicer or such other Person
specified in the Trust Agreement purchases the Mortgage Loans (and REO
Properties) pursuant to Section 11.01(a) of the Trust Agreement, the Trustee
is required thereunder to remit to the Securities Administrator the applicable
Termination Price on the Remittance Date immediately preceding the applicable
final Distribution Date. Upon such final deposit with respect to the Trust
Fund and the receipt by
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the Securities Administrator and the Custodians of a Request for Release
therefor, the Master Servicer shall direct the Custodians to release and the
Custodians shall promptly release to the Master Servicer or its designee the
Custodial Files for the Mortgage Loans.
8. Continuing Effect. Except as contemplated hereby, the Servicing
Agreement and the Sale Agreement shall remain in full force and effect in
accordance with their respective terms.
9. Governing Law.
THIS ASSIGNMENT AGREEMENT AND THE RIGHTS AND OBLIGATIONS HEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF).
EACH PARTY HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED ON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
ASSIGNMENT AGREEMENT, OR ANY OTHER DOCUMENTS AND INSTRUMENTS EXECUTED IN
CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN), OR ACTIONS OF SUCH PARTY. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE PARTIES TO ENTER INTO THIS ASSIGNMENT AGREEMENT.
10. Notices. Any notices or other communications permitted or
required hereunder or under the Servicing Agreement or 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
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,
Countrywide Home Loans Servicing LP
000 Xxxxxxxxxxx Xxx
Xxxx Xxxxxx, XX 00000
Attention: Investor Accounting
With a copy to:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
or such other address as may hereafter be furnished by the Servicer;
(b) in the case of Countrywide,
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Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx Xxxxx
With a copy to:
Countrywide Home Loans, Inc.
0000 Xxxx Xxxxxxx
Xxxxxxxxx, XX 00000
Attention: General Counsel
or such other address as may hereafter be furnished by Countrywide;
(c) in the case of the Master Servicer,
JPMorgan Chase Bank, N.A.
0 Xxx Xxxx Xxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10004
Attention: Xxxxxxx Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
or such address as may hereafter be furnished by the Master Servicer;
(d) 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
(e) 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.
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11. Counterparts. This Assignment Agreement may be executed in
counterparts, each of which when so executed shall be deemed to be an original
and all of which when taken together shall constitute one and the same
instrument.
12. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Servicing
Agreement.
13. Trustee Capacity. It is expressly understood and agreed by the
parties hereto that (i) this Assignment Agreement is executed and delivered by
U.S. Bank National Association, not individually or personally but solely on
behalf of GSAA Home Equity Trust 2006-1, as the Assignee, in the exercise of
the powers and authority conferred and vested in it, (ii) each of the
representations, undertakings and agreements by U.S. Bank National Association
is made and intended for the purpose of binding only the GSAA Home Equity
Trust 2006-1, (iii) nothing herein contained shall be construed as creating
any liability for U.S. Bank National Association, individually or personally,
to perform any covenant (either express or implied) contained herein, and all
such liability, if any, is hereby expressly waived by the parties hereto, and
such waiver shall bind any third party making a claim by or through one of the
parties hereto, and (iv) under no circumstances shall U.S. Bank National
Association be personally liable for the payment of any indebtedness or
expenses of the GSAA Home Equity Trust 2006-1, or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the GSAA Home Equity Trust 2006-1 under this Assignment
Agreement, the Trust Agreement or any related document.
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IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement the day and year first above written.
GS MORTGAGE SECURITIES CORP.
By: ________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
not in its individual capacity but
solely as Trustee
By: ________________________________
Name:
Title:
COUNTRYWIDE HOME LOANS
SERVICING LP
BY: COUNTRYWIDE GP, INC., ITS
GENERAL PARTNER
By: ________________________________
Name:
Title:
COUNTRYWIDE HOME LOANS, INC.
By: ________________________________
Name:
Title:
[SIGNATURES CONTINUE]
Acknowledged and Agreed:
JPMORGAN CHASE BANK, N.A.,
as Master Servicer
By: ___________________________________
Name:
Title:
EXHIBIT 1
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
1-1
EXHIBIT 2
Servicing Agreement
[On File with the Depositor]
2-1
EXHIBIT 3
Sale Agreement
[On File with the Depositor]
3-1
