EXHIBIT 99.11
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GSAA HOME EQUITY TRUST 2006-12
ASSET-BACKED CERTIFICATES
SERIES 2006-12
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
as Assignee
and
XXXXX FARGO BANK, NATIONAL ASSOCIATION
as Servicer
and as acknowledged by
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Master Servicer
Dated as of
July 28, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT (this "Assignment
Agreement") is made this 28th day of July, 2006, among Xxxxx Fargo Bank,
National Association, a national banking association (the "Servicer"), GS
Mortgage Securities Corp., a Delaware corporation (the "Assignor"), and U.S.
Bank National Association, not in its individual capacity, but solely as
trustee (the "Trustee") on behalf of GSAA Home Equity Trust 2006-12 (the
"Assignee"), and as acknowledged by JPMorgan Chase Bank, National Association,
as master servicer (in such capacity, the "Master Servicer").
WHEREAS, Xxxxxxx Xxxxx Mortgage Company ("GSMC") and the Servicer
have entered into (i) the Second Amended and Restated Master Seller's
Warranties and Servicing Agreement, dated as of November 1, 2005 and (ii) the
Assignment and Conveyance Agreement (06-W21), dated as of April 27, 2006
(collectively, the "Servicing Agreement") pursuant to which the Servicer sold
to GSMC on April 27, 2006 (the "Original Purchase Date") certain mortgage
loans listed on the mortgage loan schedule attached as an exhibit to the
Servicing 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, to the Assignor pursuant to an Assignment, Assumption and
Recognition Agreement, dated as of July 28, 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 A hereto (the "Mortgage Loan
Schedule"); and
WHEREAS, pursuant to a Master Servicing and Trust Agreement, dated as
of July 1, 2006 (the "Trust Agreement"), among the Depositor, the Trustee,
Deutsche Bank National Trust Company, as a custodian, Xxxxx Fargo Bank,
National Association, as a custodian and JPMorgan Chase Bank, National
Association, as Master Servicer and as securities administrator, the Assignor
will transfer the Mortgage Loans to the Assignee, together with 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 Mortgage Loans and
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 the
date hereof; the
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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.
(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; provided, however, that such amendment, modification or termination
shall not affect or be binding on the Assignee.
2. Accuracy of Servicing Agreement.
The Servicer and the Assignor represent and warrant to the Assignee
that (i) attached as Exhibit B to the GSMC Assignment Agreement 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 under 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 seller and/or servicer under the Servicing Agreement, further
represents and warrants that the representations and warranties contained in
Section 3.1 of the Servicing Agreement are true and correct as of the date
hereto, and the representations and warranties regarding the Mortgage Loans
contained in Section 3.2 of the Servicing Agreement were true and correct as
of the Original Purchase Date.
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 or in the Servicing Agreement 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, 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 the 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
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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 2006-12 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), 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
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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 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 (i) with respect
to any of the transactions contemplated by this Assignment Agreement or (ii)
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.
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It is understood and agreed that the representations and warranties
set forth in this Section 5 shall survive delivery of the 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. Repurchase of Mortgage Loans.
Upon discovery or notice of any breach by the Assignor of any
representation, warranty or covenant under this Assignment Agreement 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 ninety (90) days
from the date on which it is notified of the breach, the Assignee may enforce
the Assignor's obligation hereunder to purchase such Mortgage Loan from the
Assignee at the Repurchase Price (as defined in the Servicing Agreement).
In the event the Servicer has breached a representation or warranty
under the Servicing 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 the Servicer. If the
Servicer does not within ninety (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 Servicing 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 the Servicer to cure such breach or repurchase such Mortgage
Loan under the terms of the Servicing Agreement with respect to such Mortgage
Loan. In the event of a repurchase of any Mortgage Loan by the Assignor, the
Trustee 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 Servicing Agreement, but only insofar as the Servicing Agreement
relate 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.
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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 party with the optional call right elects to terminate the
Trust Fund pursuant to Sections 11.01 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 repurchase price of the Mortgage Loans and REO
Properties.
In the event such party purchases the Mortgage Loans (and REO
Properties) pursuant to Section 11.01 of the Trust Agreement and pursuant to
the Step 2 Assignment Agreements, the Master Servicer 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 the Securities Administrator and the Custodians of a Request for Release
therefor, the Master Servicer shall direct the Custodians to 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 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 shall be in writing and shall be deemed
conclusively to have been given
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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,
Xxxxx Fargo Bank, National Association
1 Home Campus, MAC #X2302-033
Des Moines, Iowa 50328-0001
Attention: Xxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to,
Xxxxx Fargo Bank, National Association
1 Home Campus, MAC #X2401-06T
Des Moines, Iowa 50328-0001
Attention: General Counsel
Tel: 000-000-0000
Fax: (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 other address as may hereafter be furnished by the Master
Servicer;
(c) 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
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with a copy to:
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; and
(d) in the case of the Trustee or the Assignee,
U.S. Bank National Association
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx XX 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-1179
Attention: Xxxxxx Xxxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
or such other address as may hereafter be furnished by the
Assignee.
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 or the
Trust Agreement, as applicable.
13. Trustee Capacity.
It is expressly understood and agreed by the parties hereto that (a)
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 2006-12, in the exercise of the powers and authority conferred
and vested in it, (b) each of the representations, undertakings and agreements
by U.S. Bank National Association but is made and intended for the purpose for
binding only the GSAA Home Equity Trust 2006-12, (c) nothing herein contained
shall be construed as creating any liability on the part of U.S. Bank National
Association, individually or personally, to perform any covenant either
express or implied contained herein, all such liability, if any, being
expressly waived by the parties hereto, and by any person claiming by, through
or under the parties hereto and (d) 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 2006-12 or be liable for the breach
or failure of any
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obligation, representation, warranty or covenant made or
undertaken by the GSAA Home Equity Trust 2006-12 under this Agreement or any
other related document or documents.
[SIGNATURE PAGE FOLLOWS]
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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., as Assignor
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/ Xxxxxx Xxxxxxxx
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Name: Xxxxxx Xxxxxxxx
Title: Vice President
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Servicer
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Vice President
Acknowledged and Agreed:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION,
as Master Servicer
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
Xxxxx Fargo Step 2 AAR
EXHIBIT A
Mortgage Loan Schedule
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[On File with the Securities Administrator as provided by the Depositor]
A-1
