Exhibit 99.12
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
as Assignee
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
as Servicer
and as acknowledged by
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Master Servicer
Dated as of
February 24, 2006
================================================================================
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this
24th day of February, 2006 (this "Assignment Agreement"), among U.S. Bank
National Association, not in its individual capacity, but solely as trustee on
behalf of GSAA Home Equity Trust 0000-0 (xxx "Xxxxxxxx"), XXXxxxxx Chase Bank,
National Association (the "Servicer") and GS Mortgage Securities Corp., a
Delaware corporation (the "Assignor" or "Depositor"), and as acknowledged by
JPMorgan Chase Bank, National Association, as master servicer (the "Master
Servicer").
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, GSMC has agreed to assign and convey certain mortgage
loans (the "Mortgage Loans") as of March 1, 2006, in accordance with the Rights
Purchase Agreement, which Mortgage Loans are subject to the provisions of the
Servicing Agreement, to the Assignor pursuant to an Assignment, Assumption and
Recognition Agreement, dated as of February 24, 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 February 1, 2006 (the "Trust Agreement"), among the Depositor, U.S.
Bank National Association, as trustee and as a custodian (the "Trustee"),
Deutsche Bank National Trust Company, as a custodian and JPMorgan Chase Bank,
National Association, as master servicer, securities administrator and a
custodian (the "Master Servicer"), the Assignor has transferred the Mortgage
Loans to the Trustee, and will transfer, as of March 1, 2006 the Assignor's
rights under the Servicing 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 GSMC Assignment Agreement (including without limitation
the rights of GSMC under the Servicing 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, to the extent relating to the Mortgage Loans from and
after March 1, 2006, and the Servicer hereby acknowledges such assignment and
assumption and hereby agrees to the
JPM Step 2 AAR
release of the Assignor from any obligations under the Servicing Agreement
from and after March 1, 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 or the Servicing
Agreement since the date of the Servicing Agreement.
2. Accuracy of the Servicing Agreement. 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 previously disclosed in the GSMC Assignment 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 Sections 7.01 and 7.02 of the Servicing Agreement are
true and correct as of the Closing Date (as such term is defined in the
Servicing Agreement).
3. Recognition of Assignee.
(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, the 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.
(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.
(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 2006-3 Acct # 507198670
(d) Monthly Reporting
Notwithstanding anything to the contrary in the
Servicing Agreement, with respect to the Mortgage Loans, not later than the
fifteenth (15th) calendar day of each month (or if such tenth calendar day is
not a Business Day, the immediately succeeding Business Day), 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 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 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).
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 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.
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 understood and agreed that 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. 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 Master Servicer, at the request of 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 Master Servicer shall notify the Trustee
and the Securities Administrator of the final Distribution Date and of the
applicable sale price of the Mortgage Loans and REO Properties.
If the Master Servicer, exercises its option to purchase
the Mortgage Loans and terminate the Trust Fund pursuant to Section 11.01(b)
of the Trust Agreement, by no later than the 10th day of the month of the
final distribution, the Master Servicer shall notify the Trustee and the
Securities Administrator of the final Distribution Date and of the applicable
sale price of the Mortgage Loans and REO Properties.
In the event the Mortgage Loans (and REO Properties) are
sold pursuant to Section 11.01(a) or 11.01(b) of the Trust Agreement, the
Trustee shall 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 the Securities Administrator and the Custodians of a Request
for Release therefor, the Master Servicer shall direct the Custodians to
release and the relevant Custodians shall promptly release to the Master
Servicer or its designee the Custodial Files for the Mortgage Loans.
7. Continuing Effect. Except as contemplated hereby, the
Servicing Agreement shall remain in full force and effect in accordance with
its 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 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:
(a) in the case of the Servicer,
JPMorgan Chase Bank, National Association
c/o Chase Home Finance LLC
00000 Xxxxxx Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Dunks
Telecopy: (000) 000-0000
With a copy to:
JPMorgan Chase Bank, National Association
c/o Chase Home Finance LLC
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
or such other address as may hereafter be furnished by the Servicer;
(b) in the case of the Master Servicer,
JPMorgan Chase Bank, National Association
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such address as may hereafter be furnished by the Master Servicer;
in the case of the Trustee or the Assignee,
U.S. Bank National Association 000 Xxxxx Xxxxx
Xxxxxx, 00xx Xxxxx Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000 Attention: GSAA Home Equity Trust 2006-3
Tel: (000) 000-0000
or such other address as may hereafter be furnished by the Trustee or Assignee;
and
in the case of the Assignor,
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 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.
12. 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 2006-3, 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 2006-3, (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 2006-3, or be liable for
the breach or failure of any obligation, representation, warranty or covenant
made or undertaken by the GSAA Home Equity Trust 2006-3 under this Assignment
Agreement, the Trust Agreement or any related document.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this
Assignment Agreement the day and year first above written.
GS MORTGAGE SECURITIES CORP.
By: /s/ Xxxxxxxx Xxxx
Name: Xxxxxxxx Xxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION not
in its individual capacity but solely as
Trustee
By: /s/ Xxxxxxxx X'Xxxxx-Xxxxxxx
Name: Xxxxxxxx X'Xxxxx-Xxxxxxx
Title: Vice President
JPMORGAN CHASE BANK, NATIONAL
ASSOCIATION, as Servicer
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
Acknowledged and Agreed:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
EXHIBIT 1
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by the Depositor]
EXHIBIT 2
Servicing Agreement
[On File with the Depositor]
