EXHIBIT 99.11
EXECUTION COPY
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
and
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Servicer
Dated as of
March 30, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment
Agreement") made this 30th day of March, 2006, among JPMorgan Chase Bank,
National Association (the "Servicer"), GS Mortgage Securities Corp., as
assignee (the "Assignee") and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, as assignor (the
"Assignor").
WHEREAS, the Assignor and the Servicer have entered into the
Comprehensive Amended and Restated Servicing Agreement, dated as of September
1, 2005 (the "Servicing Agreement") and the Comprehensive Amended and Restated
Flow Mortgage Servicing Rights Purchase Agreement, dated as of July
1, 2004 (the "Rights Purchase 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, in accordance with the Rights Purchase Agreement, will as of
March 1, 2006, be subject to the provisions of the 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 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 (the "Master
Servicer"), securities administrator and as a custodian, the Assignee will
transfer the Mortgage Loans to the Trustee, together with the Assignee's
rights under the 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 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 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 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
Servicing Agreement.
2. Accuracy of the 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) except as provided in this
Agreement, the 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 Servicing Agreement. The Servicer, in its capacity as servicer under the
Servicing Agreement, further represents and warrants that the representations
and warranties contained in Article VI of the Servicing Agreement are true and
correct as of the Closing Date (as such term is defined in the Servicing
Agreement).
3. Modification of the Servicing Agreement. Only in so far as it
relates to the Mortgage Loans, the Servicer and the Assignor hereby amend the
Servicing Agreement as follows:
(a) a new defined term "Determination Date" will be added to Article
I after the term "Deboarding Fee" as follows:
"Determination Date: With respect to each Remittance Date, the close
of business of the last day of the month preceding the month in which such
Remittance Date occurs.
(b) a new defined term "FNBN" will be added to Article I after the
term "FDIC" as follows:
"FNBN: First National Bank of Nevada, a national banking
association, or its successors in interest."
(c) a new defined term "FNBN Agreement" will be added to Article I
after the term "FNBN" as follows:
"FNBN Agreement: The Amended and Restated Master Mortgage Loan
Purchase and Interim Servicing Agreement, dated as of November 1, 2005,
between ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company and First National Bank of Nevada."
(d) a new defined term "Monthly Advance" will be added to Article I
after the term "MERS(R) System" as follows:
"Monthly Advance: Commencing with each Monthly Payment due on or
after the related Cut-off Date, the portion of each Monthly Payment that is
delinquent with respect to each Mortgage Loan at the close of business on the
Determination Date required to be advanced by the Servicer pursuant to Section
4.04 on the Remittance Date of the related month."
(e) the definition of "Nonrecoverable Advance" in Article I shall be
deleted in its entirety and replaced as follows"
"Nonrecoverable Advance: Any Servicing Advance or Monthly Advance
previously made or proposed to be made in respect of a Mortgage Loan by the
Servicer which the Servicer believes, in accordance with the Servicing
Standard, will not or, in the case of a proposed Servicing Advance or Monthly
Advance, would not, ultimately be recoverable by the Servicer from the
proceeds of such Mortgage Loan."
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(f) the definition of "Remittance Date" in Article I shall be
deleted in its entirety and replaced as follows:
"Remittance Date: The 23rd day of any month, or if such 23rd day is
not a Business Day, the first Business Day immediately preceding such day."
(g) the definition of "Reporting Date" in Article I shall be deleted
in its entirety and replaced as follows:
"Reporting Date: The 15th day of any month, or if such 15th day is
not a Business Day, the Business Day immediately following such 15th day."
(h) the definition of "Servicing Advances" shall be amended by
adding the words "other than Monthly Advances" after the words "servicing
obligations" in the third line of the definition.
(i) the first paragraph of Section 3.01 shall be deleted in its
entirety and replaced with the following:
"The Servicer shall service and administer the related Mortgage
Loans from and after the related Transfer Date through Chase Home Finance
("CHF") as subservicer. CHF shall have full power and authority, under the
direction of the Servicer, to do any and all things in connection with such
servicing and administration which the Servicer may deem necessary or
desirable, consistent with the terms of this Agreement and with the Servicing
Standard."
(j) Section 3.03 shall be amended as follows:
i. the title of the Custodial Account, as set forth in the
first sentence of Section 3.03, shall be deleted and
replaced with the following:
"Chase Home Finance LLC as subservicer for JPMorgan Chase Bank,
National Association in trust for GSAA Home Equity Trust 2006-5."
ii. "and" shall be deleted from the end of subsection (viii);
iii. subsection (ix) shall be amended by deleting the "." at
the end of subsection (ix) and replacing it with "; and";
iv. a new subsection (x) shall be added to Section 3.03
immediately following subsection (ix) which shall be as
follows:
"(x) with respect to each voluntary Principal Prepayment an amount
(to be paid by the Servicer out of its own funds, but not in excess of its
aggregate Servicing Fee for the related Due Period) which, when added to all
amounts allocable to interest received in connection with the Principal
Prepayment, equals one month's interest on the amount of principal so prepaid
at the Mortgage Loan Remittance Rate."
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(k) Section 3.04 shall be amended as follows:
(i) subsection (vii) shall be amended by deleting ". 3.09(c) or
10.02" at the end of subsection (vii);
(ii) "and" shall be deleted from the end of subsection (viii);
(iii) subsection (ix) shall be amended by deleting the "."
at the end of subsection (ix) and replacing it with "; and";
(ix) a new subsection (x) shall be added to Section 3.04
immediately following subsection (ix) which shall be as follows:
"(x) to reimburse itself for Monthly Advances of the Servicer's
funds made pursuant to Section 4.04, the Servicer's right to reimburse itself
pursuant to this subclause (x) being limited to related Liquidation Proceeds,
Condemnation Proceeds, Insurance Proceeds and such other amounts as may be
collected by the Servicer from the Mortgagor or otherwise relating to the
Mortgage Loan, including amounts received on the related Mortgage Loan which
represent late payments of principal and/or interest respecting which any such
advance was made, it being understood that, in the case of any such
reimbursement, the Servicer's right thereto shall be prior to the rights of
any purchaser."
(l) the title of the Escrow Account, as set forth in the first
sentence of Section 3.05, shall be deleted and replaced with the following:
"Chase Home Finance LLC as subservicer for JPMorgan Chase Bank,
National Association in trust for GSAA Home Equity Trust 2006-5 and various
mortgagors."
(m) Section 3.15 shall be amended by adding the following paragraph
immediately after the 3rd paragraph thereof:
The Servicer 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 three years after title has been taken to such REO Property, not later
than the end of the third taxable year after the year of its acquisition
unless (i) (A) a REMIC election has not been made with respect to the
arrangement under which the Mortgage Loans and the REO Property are held, (ii)
the Servicer obtains an extension from the Internal Revenue Service and (iii)
the Servicer determines, and gives an appropriate notice to the Owner to such
effect, that a longer period is necessary for the orderly liquidation of such
REO Property. If a period longer than three years is permitted under the
foregoing sentence and is necessary to sell any REO Property, (i) the Servicer
shall report monthly to the Owner as to the progress being made in selling
such REO Property and (ii) if, with the written consent of the Owner, a
purchase money mortgage is taken in connection with such sale, such purchase
money mortgage shall name the Servicer as mortgagee, and such purchase money
mortgage shall not be held pursuant to this Agreement, but instead a separate
participation agreement among the Servicer and Owner shall be entered into
with respect to such purchase money mortgage.
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(n) a new section, Section 4.04, will be added immediately following
Section 4.03 which shall read as follows:
"Section 4.04 Monthly Advances by Servicer.
On the Remittance Date, the Servicer shall deposit in the Custodial
Account from its own funds or from amounts held for future distribution an
amount equal to all Monthly Payments to the extent not allocable to the period
prior to the Cut-off Date (with interest adjusted to the Mortgage Loan
Remittance Rate) which were due on the Mortgage Loans during the applicable
Due Period and which were delinquent or deferred as of the close of business
on the Business Day prior to the related Determination Date. Any amounts held
for future distribution and so used shall be replaced by the Servicer by
deposit in the Custodial Account on or before any future Remittance Date if
funds in the Custodial Account on such Remittance Date shall be less than
payments to the Owner required to be made on such Remittance Date. The
Servicer's obligation to make such Monthly Advances as to any Mortgage Loan
will continue through the last Monthly Payment due prior to the payment in
full of the Mortgage Loan, or of the last Remittance Date prior to the
Remittance Date for the distribution of all Liquidation Proceeds and other
payments or recoveries (including Insurance Proceeds and Condemnation
Proceeds) with respect to the Mortgage Loan; provided, however, that such
obligation shall cease if the Servicer determines, in its sole reasonable
opinion, that advances with respect to such Mortgage Loan are non-recoverable
by the Servicer from Liquidation Proceeds, Insurance Proceeds, Condemnation
Proceeds, or otherwise with respect to a particular Mortgage Loan. In the
event that the Servicer determines that any such advances are non-recoverable,
the Servicer shall provide the Owner with a certificate signed by an officer
of the Servicer evidencing such determination."
(o) Section 7.02 shall be deleted in its entirety and replaced with
the following:
"Section 7.02 Indemnification by the Owner.
"In the event that FNBN is required to make any payment to the
Servicer under the terms of Section 12.01 of the FNBN Agreement and FNBN fails
to do so in a timely manner, the Owner unconditionally agrees with the
Servicer that it will make such payment directly to the Servicer upon demand."
(p) a new paragraph shall be added to Section 8.03 immediately prior
to the last paragraph which shall read as follows:
"Subject to the terms of this Agreement, the Servicer shall not
cause the removal of CHF as subservicer, or permit CHF from resigning from the
obligations and duties imposed on it, without first obtaining written
confirmation from each Rating Agency that such withdrawal or resignation will
not result in the downgrade, qualification or withdrawal of the then current
ratings of the certificates."
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
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pursuant to the Servicing Agreement the terms of which are incorporated herein
by reference. It is the intention of the Assignor, Assignee and Servicer that
the Servicing Agreement shall be binding upon and inure to the benefit of the
Servicer 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
Servicer other than those contained in the 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 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 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.
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(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 Section 6 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, with respect to the Mortgage
Loans, the Assignor has made no representations or warranties to the Assignee
other than those contained in Section 6, and no other affiliate of the
Assignor has made any representations or warranties of any kind to the
Assignee.
7. Continuing Effect. Except as contemplated hereby, the Servicing
Agreement shall remain in full force and effect in accordance with their
respective terms.
8. 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
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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.
9. Notices. Any notices or other communications permitted or
required hereunder or under the 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:
(b) in the case of the Servicer,
JPMorgan Chase Bank, National Association
c/o Chase Home Finance LLC
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. Dunks
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
JPMorgan Chase Bank, National Association
c/o Chase Home Finance LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished by the Servicer;
(b) in the case of the Assignee,
GS Mortgage Securities Corp.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
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Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished by the Assignee; and
(c) in the case of the Assignor,
▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished by the Assignor.
10. 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.
11. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Servicing
Agreement or Trust Agreement, as applicable.
12. 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.
[SIGNATURES APPEAR ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement the day and year first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE
COMPANY
By: ▇▇▇▇▇▇▇ Sachs Real Estate Funding
Corp., its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
GS MORTGAGE SECURITIES CORP.
By: /s/ MichellGill
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
JPMorgan 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
Servicing Agreement
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[On File with the Depositor]
2-1