EXHIBIT 99.7
EXECUTION COPY
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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 FOR GSAA HOME EQUITY TRUST
2006-12
as Assignee
▇▇▇▇▇▇'▇ GATE RESIDENTIAL MORTGAGE TRUST,
as ▇▇▇▇▇▇'▇ Gate
and
PHH MORTGAGE CORPORATION
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 made this 28th
day of July, 2006 (this "Assignment Agreement"), among PHH Mortgage
Corporation (formerly known as Cendant Mortgage Corporation), a New Jersey
corporation (the "Servicer"), ▇▇▇▇▇▇'▇ Gate Residential Mortgage Trust, a
Delaware statutory trust (formerly known as Cendant Residential Mortgage
Trust) ("▇▇▇▇▇▇'▇ Gate" and, together with the Servicer, the "PHH Parties"),
U.S. Bank National Association, not in its individual capacity, but solely as
trustee on behalf of GSAA Home Equity Trust 2006-12 (the "Assignee" or
"Trustee"), and GS Mortgage Securities Corp., a Delaware corporation (the
"Assignor" or "Depositor"), and as acknowledged by JPMorgan Chase Bank,
National Association ("JPMorgan"), as master servicer (in such capacity, the
"Master Servicer").
WHEREAS, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Mortgage Company ("GSMC") and the PHH
Parties have entered into the Amended and Restated Mortgage Loan Flow
Purchase, Sale & Servicing Agreement, dated as of December 1, 2005 (the "Sale
and Servicing Agreement"), pursuant to which the PHH Parties sold to GSMC
certain mortgage loans listed on the mortgage loan schedule attached as an
exhibit to the GSMC Assignment Agreement (as defined below);
WHEREAS, GSMC has assigned and conveyed certain mortgage loans
(the "Mortgage Loans"), which Mortgage Loans are subject to the provisions of
the Sale and 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 1 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, ▇▇▇▇▇ Fargo Bank,
National Association, as a custodian, JPMorgan, 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 Sale and 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 Sale and 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 Sale and
Servicing Agreement, to the extent relating to the Mortgage Loans from and
after July 28, 2006, and the Servicer hereby acknowledges such assignment and
assumption and hereby agrees to the release of the Assignor from any
obligations under the Sale and Servicing Agreement from and after July 28,
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 since the date of the Sale
and Servicing Agreement.
(c) The PHH Parties and the Assignor shall have the right to
amend, modify or terminate the Sale and 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 Sale and Servicing Agreement. The PHH Parties 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 Sale and Servicing
Agreement, (ii) the Sale and Servicing Agreement is in full force and effect
as of the date hereof, (iii) except as provided in Section 1 above, the Sale
and 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 Sale
and Servicing Agreement. The PHH Parties, in their respective capacities as
seller and/or servicer under the Sale and Servicing Agreement, further
represent and warrant that the representations and warranties contained in
Sections 3.01 and 3.02 of the Sale and Servicing Agreement are true and
correct as of the July 28, 2006 and the representations and warranties
regarding the Mortgage Loans contained in Section 3.03 of the Sale and
Servicing Agreement were true and correct as of the Closing Date (as such term
is defined in the Sale and 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 Sale and Servicing Agreement the
terms of which are incorporated herein by reference. It is the intention of
the Assignor, the PHH Parties and Assignee that the Sale and Servicing
Agreement shall be binding upon and inure to the benefit of the PHH Parties
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 Sale and 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 "Purchaser" under the Sale and 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 Sale and Servicing Agreement upon the
occurrence of an event
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of default thereunder, the right to receive all remittances required to be
made by the Servicer under the Sale and Servicing Agreement, the right to
receive all monthly reports and other data required to be delivered by the
Servicer under the Sale and 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 "Purchaser" under the Sale and Servicing Agreement shall be
delivered to the Master Servicer 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 Sale and Servicing Agreement, shall be
made instead to the Master Servicer by wire transfer to the following account:
JPMorgan Chase Bank, National Association
ABA #: ▇▇▇▇▇▇▇▇▇
For credit to: SAS Clearing
Acct #: 507198670
FFC to: GSAA 2006-12 Acct #507198670
(d) Monthly Reporting
Notwithstanding anything to the contrary in the Sale and 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-upon between the Servicer and the Master
Servicer, in each case relating to the period ending on the last day of the
preceding calendar 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 PHH
Parties other than those contained in the Sale and 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 Sale and 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
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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 Sale and 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
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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 sixty (60) 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 Sale
and Servicing Agreement. Notwithstanding the foregoing, however, if such
breach is a Qualification Defect as defined in the Sale and Servicing
Agreement, such cure or repurchase must take place within sixty (60) days of
discovery of such Qualification Defect.
In the event a PHH Party has breached a representation or warranty
under the Sale and 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 such PHH Party.
If the PHH Party 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 Sale and 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 such PHH Party to cure such breach or
repurchase such Mortgage Loan under the terms of the Sale and Servicing
Agreement with respect to such Mortgage Loan. In the event of a repurchase of
any Mortgage Loan by the Assignor or PHH, the Assignee shall promptly deliver
to the Assignor or PHH, as applicable, or to such party's designee, the
related Mortgage File and shall assign to such party all of the Assignee's
rights under the Sale and Servicing Agreement, but only insofar as the Sale
and Servicing Agreement relates 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.
In the event that a Person specified in Section 11.01 of the Trust
Agreement chooses to exercise its option set forth therein to purchase the
Mortgage Loans and REO Properties or to conduct an Auction Call for such
property of the Trust Fund, as the case may be, by no later than the 10th day
of the month of the final distribution, such Person shall notify the
Depositor, the Trustee and the Securities Administrator of the final
Distribution Date and of the applicable purchase or sale price of the Mortgage
Loans and REO Properties determined and in the manner as provided in the Trust
Agreement.
In the event the Mortgage Loans and REO Properties are purchased
or sold pursuant to Section 11.01 of the Trust Agreement, the Master Servicer
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 to the
Master Servicer or its designee the Custodial Files for the Mortgage Loans.
8. Continuing Effect. Except as contemplated hereby, the Sale and
Servicing Agreement shall remain in full force and effect in accordance with
its 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.
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10. Notices. Any notices or other communications permitted or
required hereunder or under the Sale and 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 PHH Parties,
PHH Mortgage Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Vice President of Servicing
or such address as may hereafter be furnished by the PHH
Parties;
(b) in the case of the Master Servicer,
JPMorgan Chase Bank, National Association
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such address as may hereafter be furnished by the
Master Servicer;
(c) in the case of the Trustee or the Assignee,
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ 1179
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished by
the Trustee or Assignee; and
(d) in the case of the Assignor,
GS Mortgage Securities Corp.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address as may hereafter be furnished by
the Assignor.
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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 Sale and
Servicing Agreement.
13. Third Party Beneficiary. The parties agree that the Master
Servicer is intended to be, and shall have the rights of, a third party
beneficiary of this Assignment Agreement.
14. 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 2006-12, 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 2006-12, (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 2006-12, or be liable for the breach or
failure of any obligation, representation, warranty or covenant made or
undertaken by the GSAA Home Equity Trust 2006-12 under this Assignment
Agreement, the Trust Agreement or any related document.
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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.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, not
in its individual capacity but
solely as Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
PHH MORTGAGE CORPORATION (formerly
known as CENDANT MORTGAGE
CORPORATION)
By: /s/ Crissy Judge
-----------------------------------
Name: Crissy Judge
Title: Asst. Vice President
PHH Step 2 AAR
Acknowledged and Agreed:
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
as Master Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
PHH Step 2 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
Sale and Servicing Agreement
----------------------------
[On File with the Depositor]
2-1