Exhibit 99.12
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
and
COUNTRYWIDE HOME LOANS SERVICING, LP
as Servicer
and as acknowledged by
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Master Servicer
Dated as of
January 27, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT, dated January 27,
2006 (this "Agreement"), among GS Mortgage Securities Corp. ("Assignor" or
"Depositor"), U.S. Bank National Association, not in its individual capacity
but solely as trustee on behalf of GSAA Home Equity Trust 2006-1 ("Assignee"
or "Trustee"), Countrywide Home Loans Servicing LP (the "Servicer") and as
acknowledged by JPMorgan Chase Bank, National Association, as master servicer
(the "Master Servicer").
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
listed on the schedule (the "Mortgage Loan Schedule") attached hereto as
Exhibit A (the "Mortgage Loans"), (b) the Representations and Warranties
Agreement, dated as of January 27, 2006, between Xxxxxxx Xxxxx Mortgage
Company and the Assignor (the "Representations and Warranties Agreement") and
(c) solely insofar as it relates to the Mortgage Loans, that certain Flow
Servicing Agreement, dated as of May 1, 2005 (the "Servicing Agreement"), by
and between Xxxxxxx Sachs Mortgage Company as predecessor to the Assignor (in
such capacity, 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 Master Servicing
and Trust Agreement, dated as of January 1, 2006 (the "Trust Agreement"),
among the Depositor, the Trustee, JPMorgan Chase Bank, N.A., as master
servicer (in such capacity, the "Master Servicer") and securities
administrator (in such capacity, the "Securities Administrator") and Deutsche
Bank National Trust Company and JPMorgan Chase Bank, N.A., as custodians.
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 6.01(b)
(relating to the Owner's right to terminate the Servicer), Section 4.09
(relating to the Owner's right to receive information from the Servicer) and
Sections 13.13(i) and 13.15 (relating the Owner's obligation to execute
certain confidentiality agreements) or (iv) any rights of the Assignor under
the Commitment Letter, dated as of January 27, 2006 (the "Commitment Letter")
between the Owner and the Company, 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.
The parties hereto agree that, notwithstanding anything to the
contrary contained in the Commitment Letter, with respect to the Mortgage
Loans being serviced under the Servicing Agreement the Servicing Fee Rate for
the Mortgage Loans shall be the rate set forth on the Mortgage Loan Schedule.
2. Recognition of the Assignee.
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 Trust Agreement, (ii) the
Servicer shall look solely to the Trust (including the Trustee and the Master
Servicer 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 Master Servicer acting on the Trust's behalf) shall have
all the rights and remedies available to the Assignor, insofar as they relate
to the Mortgage Loans, under the applicable Purchase Agreement pursuant to
which the Owner purchased the related Mortgage Loans from the related Seller
and the Servicing Agreement, including, without limitation, the enforcement of
the document delivery requirements set forth in Section 6.03 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 Article 10 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 Servicer 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) prior to 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, waiver, 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 Trustee.
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3. Representations and Warranties of the Assignee.
The Assignee warrants and represents to and covenants with, the
Assignor, the Servicer and the Trust as of the date hereof that:
(a) The Assignee is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation;
(b) The Assignee has full power and authority to execute,
deliver and perform its obligations under this Agreement. The
execution by the Assignee of this Agreement is in the ordinary course
of the Assignee's business and will not conflict with, or result in a
breach of, any of the terms, conditions or provisions of the
Assignee's charter or bylaws or any legal restriction, or any
material agreement or instrument to which the Assignee 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 Assignee or its
property is subject. The execution, delivery and performance by the
Assignee of this Agreement have been duly authorized by all necessary
corporate action on part of the Assignee. This Agreement has been
duly executed and delivered by the Assignee, and, upon the due
authorization, execution and delivery by the Assignor, the Servicer
and the Master Servicer, will constitute the valid and legally
binding obligation of the Assignee, enforceable against the Assignee
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 Assignee in connection with
the execution, delivery or performance by the Assignee of this
Agreement or the consummation by it of the transaction contemplated
hereby; and
(d) There is no action, suit, proceeding or investigation
pending or threatened against the Assignee, before any court,
administrative agency or other tribunal, which would draw into
question the validity of this 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 Assignee to perform its
obligations under this Agreement, and the Assignee is solvent.
4. Representations and Warranties of the Assignor.
The Assignor warrants and represents to the Assignee and the Trust as
of date hereof that:
(a) The Assignor is the sole owner of record and holder of
the Mortgage Loans and the indebtedness evidenced by each Mortgage
Note. The Mortgage Loans are not assigned or pledged, and the
Assignor has good, indefeasible and marketable title thereto, and has
full right to transfer and sell the Mortgage Loans to the Assignee
free and clear of any encumbrance, equity, participation interest,
lien, pledge, charge, claim or
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security interest, and has full right and authority subject to no
interest or participation of, or agreement with, any other party, to
sell and assign each Mortgage Loan pursuant to this Agreement and
following the sale of each Mortgage Loan, the Assignee will own such
Mortgage Loan free and clear of any encumbrance, equity,
participation interest, lien, pledge, charge, claim or security
interest. The Assignor intends to relinquish all rights to possess,
control and monitor the Mortgage Loans;
(b) 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;
(c) With respect to the Mortgage Loans, 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 and
disclosure laws, all applicable predatory and abusive lending laws or
unfair and deceptive practices laws applicable to the Mortgage Loans,
including, without limitation, any provisions related to Prepayment
Premiums, have been complied with, the consummation of the
transactions contemplated hereby will not involve the violation of
any such laws or regulations; and
(d) With respect to the Mortgage Loans, none of the Mortgage
Loans are (a) subject to the Home Ownership and Equity Protection Act
of 1994 or (b) classified as "high cost," "threshold," "covered" or
"predatory" loans under any other applicable federal, state or local
law (or a similarly classified loan using different terminology under
a law imposing heightened regulatory scrutiny or additional legal
liability for residential mortgage loans having high interest rates,
points and/or fees).
5. 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 4 hereof or in Section 1 of 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 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 2 of the Representations and Warranties
Agreement.
6. Continuing Effect. Except as contemplated hereby, the Servicing
Agreement and Sale Agreement shall remain in full force and effect in
accordance with their respective terms.
7. Notices. Any notices or other communications permitted or required
hereunder or under the Servicing Agreement or Sale Agreement shall be in
writing and shall be deemed conclusively to have been given if personally
delivered at or mailed by registered mail,
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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 Servicing LP
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 the Master Servicer,
JPMorgan Chase Bank, N.A.
4 New York Plaza, 6th Floor
New York, New York 10004
Attention: Xxxxxxx X. Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such address as may hereafter be furnished by the Master Servicer;
(c) 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
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(d) 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.
8. 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.
9. Definitions. Any capitalized term used but not defined in this
Assignment Agreement has the meaning assigned thereto in the Servicing
Agreement.
10. Trustee Capacity. It is expressly understood and agreed by the
parties hereto that (i) this 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 Agreement, the Trust Agreement or any
related document.
11. 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.
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(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 Servicer acting on the Trust's
behalf). Any entity into which the Assignor or Assignee may be merged
or consolidated shall, without the requirement for any further
writing, be deemed Assignor, or Assignee, 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) 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.
[SIGNATURE PAGE FOLLOWS]
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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/ Xxxxxxxx Xxxx
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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
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Name: Xxxxxxxx X'Xxxxx Xxxxxxx
Title: Vice President
COUNTRYWIDE HOME LOANS SERVICING LP, a
Texas limited partnership
By: COUNTRYWIDE GP, INC., general partner
By: /s/ Xxxxxx X. Xxx
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Name: Xxxxxx X. Xxx
Title: Senior Vice President
Acknowledged and Agreed:
JPMORGAN CHASE BANK, N.A.,
as Master Servicer
By: /s/ Xxxxxxx Xxxxxxx
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Name: Xxxxxxx Xxxxxxx
Title: Vice President
Conduit Step 2 AAR
EXHIBIT A
Mortgage Loan Schedule
[On File with the Securities Administrator as provided by The Depositor]
A-1
