Exhibit 99.3
EXECUTION COPY
================================================================================
GSAA HOME EQUITY TRUST 2006-13
ASSET-BACKED CERTIFICATES
SERIES 2006-13
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY,
as Assignor
GS MORTGAGE SECURITIES CORP.,
as Assignee
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
as Servicer
Dated as of
August 25, 2006
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated August 25,
2006 (this "Agreement"), among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company, a New York
limited partnership (the "Assignor"), GS Mortgage Securities Corp., a Delaware
corporation (the "Assignee") and ▇▇▇▇▇ Fargo Bank, National Association, a
national banking association (the "Servicer").
WHEREAS, the Assignor and the Servicer have entered into the
Servicing Agreement, dated as of June 30, 2006 (the "Servicing Agreement"),
pursuant to which the Servicer has agreed to service certain mortgage loans
acquired by the Assignor from time to time;
WHEREAS, the servicing of the Mortgage Loans was transferred to
▇▇▇▇▇ Fargo on August 15, 2006;
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 (the
"Mortgage Loans") listed on the schedule (the "Mortgage Loan Schedule") attached
hereto as Exhibit A, and (b) solely insofar as it relates to the Mortgage Loans,
that certain Servicing Agreement, by and between the Assignor, as owner (the
"Owner") and the Servicer. 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 11.02 (relating
to the Owner's right to terminate the Servicer) and Section 7.01 (relating to
the Owner's right to receive information from the Servicer) or (iv) any rights
of the Assignor under the Commitment Letter, dated as of July 26, 2006 (the
"Commitment Letter"), between the Owner and the Servicer, 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.
2. Recognition of the Servicer.
From and after the date hereof (the "Securitization Closing Date"),
the Servicer 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 Deutsche Bank National Trust
Company ("Deutsche Bank"), as trustee (including its successors in interest and
any successor trustees under the Trust Agreement, the "Trustee"), of the GSAA
Home Equity Trust 2006-13 (the "Trust") created pursuant to a Trust Agreement,
dated as of August 1, 2006 (the "Trust Agreement"), among the Assignee, Deutsche
Bank, as Trustee and as a custodian, U.S. Bank National Association, as a
custodian, JPMorgan Chase Bank, National Association, as a custodian and ▇▇▇▇▇
Fargo Bank, National Association, as securities administrator. The Servicer
hereby acknowledges and agrees that from and after the date hereof (i) the Trust
will be the owner of the Mortgage Loans and the Servicer will be the servicer of
the Mortgage Loans on or after the applicable Transfer Date pursuant to the
terms set forth in the Servicing Agreement and related Commitment Letter, (ii)
the Servicer shall look solely to the Trust (including the Trustee and the
Securities Administrator 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 Securities Administrator acting on the Trust's
behalf) shall have all the rights and remedies available to the Assignor,
insofar as they relate to (A) the Mortgage Loans, under the applicable purchase
agreement pursuant to which the Owner purchased the related Mortgage Loans from
the related Seller and (B) the Servicing Agreement, including, without
limitation, the enforcement of the document delivery requirements set forth in
Section 5(b) of the related purchase agreement, and shall be entitled to enforce
all of the obligations of the Servicer thereunder insofar as they relate to the
Mortgage Loans, including without limitation, the remedies for breaches of
representations and warranties set forth in Section 3.02 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 Securities Adminstrator
acting on the Trust's behalf) and (v) the Mortgage Loans will be part of a
REMIC, and the Servicer 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) after 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 Servicer nor
the Assignor shall amend or agree to amend, modify, waive, 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 Servicer's performance
under the Servicing Agreement with respect to the Mortgage Loans without the
prior written consent of the Depositor as set forth in the Trust Agreement.
3. Modifications 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) The definition of "Principal Prepayment Period" set forth
in Article I shall be deleted in its entirety and replaced with the
following:
"Principal Prepayment Period: With respect to any Remittance
Date, the 14th day of the calendar month preceding the month in which that
Remittance Date occurs to the 13th day of the month in which the
Remittance Date occurs."
(b) The definition of "Remittance Date" set forth in Article I
shall be deleted in its entirety and replaced with the following:
"Remittance Date: With respect to any Remittance Date, the
18th day (or if such 18th day is not a Business Day, the first Business
Day immediately preceding such date) of any month."
(c) The definition of "Servicing Fee Rate" set forth in
Article I shall be deleted in its entirety and replaced with the
following:
"Servicing Fee Rate: With respect to any Mortgage Loan,
0.250% per annum."
(d) The first sentence of the fifth paragraph of Section 4.16
shall be deleted in its entirety and replaced with the following:
"Subject to two (2) Business Days' prior written notice to the
Owner, at the address specified in Section 12.05, of its intent to do so, the
disposition of REO Property shall be carried out by the Servicer at such price,
and upon such terms and conditions, as the Servicer deems to be in the best
interests of the Owner."
4. Accuracy of Servicing Agreement.
The Servicer and the Assignor represent and warrant to the Assignee
that (i) attached hereto as Exhibit B 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 (other than as set forth herein) and (iv) no notice
of termination has been given to the Servicer under the Servicing Agreement.
5. 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 or in the Servicing
Agreement to the contrary, shall service all of the Mortgage Loans for the
benefit of the Assignee pursuant to the terms of the Servicing Agreement, as
modified by this Assignment Agreement, the terms of which are incorporated
herein by reference. It is the intention of the Assignor, Servicer and Assignee
that the Servicing Agreement shall be binding upon and inure to the benefit of
the Servicer and the Assignee and their successors and assigns.
6. Representations and Warranties of the Servicer.
The Servicer warrants and represents to and covenants with, the
Assignor, the Assignee and the Trust as of the date hereof that:
(a) The Servicer is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation;
(b) The Servicer 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 Servicer of this Agreement is in
the ordinary course of the Servicer's business and will not conflict with,
or result in a breach of, any of the terms, conditions or provisions of
the Servicer's charter or bylaws or any legal restriction, or any material
agreement or instrument to which the Servicer 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 Servicer or its property is
subject. The execution, delivery and performance by the Servicer of this
Agreement have been duly authorized by all necessary corporate action on
part of the Servicer. This Agreement has been duly executed and delivered
by the Servicer, and, upon the due authorization, execution and delivery
by the Assignor and the Assignee, will constitute the valid and legally
binding obligation of the Servicer, enforceable against the Servicer 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 Servicer in connection with the execution,
delivery or performance by the Servicer of this Agreement or the
consummation by it of the transaction contemplated hereby;
(d) The Servicer 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 Servicer, 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 Servicer to perform its obligations
under this Agreement or the Servicing Agreement, and the Servicer is
solvent;
(f) The Servicer 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 Servicer at the time the Servicer 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 Servicer at the time the Servicer 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 Servicer'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.
(i) Pursuant to Section 9.01 of the Servicing Agreement, the
Servicer hereby represents and warrants, for the benefit of the Assignor,
the Assignee and the Trust, that the representations and warranties set
forth in Section 3.01 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.
7. 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
Servicer 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 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(d), Appendix E,
as revised from time to time and in effect as of the Original Purchase
Date. Furthermore, none of the Mortgage Loans sold by the Seller are
classified as (a) a "high cost mortgage" loan under the Home Ownership and
Equity Protection Act of 1994 or (b) a "high cost home," "covered,"
"high-cost," "high-risk home," or "predatory" loan under any other
applicable state, federal or local law.
(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.
(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.
(i) Prepayment Premiums. To the Assignor's knowledge, with respect
to any Mortgage Loan that contains a provision permitting imposition of a
Prepayment Premium prior to maturity: (a) prior to the Mortgage Loan's
origination, the borrower agreed to such premium in exchange for a
monetary benefit, including but not limited to a rate or fee reduction;
(b) prior to the Mortgage Loan's origination, the borrower was offered the
option of obtaining a Mortgage Loan that did not require payment of such a
premium; (c) the prepayment premium is adequately disclosed to the
borrower pursuant to applicable state and federal law; (d) no Mortgage
Loan originated on or after October 1, 2002 will impose a prepayment
premium for a term in excess of three (3) years and any Mortgage Loans
originated prior to such date will not impose Prepayment Premiums in
excess of five (5) years, in each case unless the Mortgage Loan was
modified to reduce the prepayment period to no more than three years from
the date of the note and the borrower was notified in writing of such
reduction in prepayment period; and (e) notwithstanding any state or
federal law to the contrary, the Servicer may impose such Prepayment
Premium in any instance when the Mortgage Loan is accelerated or paid off
in connection with the workout of a delinquent mortgage or due to the
borrower's default.
8. 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 5 hereof or in Section 2 of the Representations and Warranties
Agreement, dated as of August 25, 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 sixty (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 3 of
the Representations and Warranties Agreement.
9. 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.
(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 Securities Administrator acting on the Trust's behalf).
Any entity into which the Assignor, Assignee or the Servicer may be merged
or consolidated shall, without the requirement for any further writing, be
deemed Assignor, Assignee or the Servicer, 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]
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/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ MORTGAGE COMPANY, a New
York limited partnership
By: ▇▇▇▇▇▇▇ SACHS REAL ESTATE FUNDING
CORP., a New York corporation, as General
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Servicer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
Step 1 AAR
EXHIBIT A
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
A-1
EXHIBIT B
Servicing Agreement
[On File with the Depositor]