EXECUTION COPY
Exhibit 99.12
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GSAA HOME EQUITY TRUST 2006-9
ASSET-BACKED CERTIFICATES
SERIES 2006-9
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
among
GS MORTGAGE SECURITIES CORP.,
as Assignor
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
as Assignee
and
GREENPOINT MORTGAGE FUNDING, INC.
as Servicer
and as acknowledged by
JPMORGAN CHASE BANK, NATIONAL ASSOCIATION
as Master Servicer
Dated as of
May 26, 2006
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ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT
ASSIGNMENT, ASSUMPTION AND RECOGNITION AGREEMENT made this
26th day of May, 2006 (this "Assignment Agreement"), among GreenPoint Mortgage
Funding, Inc., a New York corporation (the "Servicer"), U.S. Bank National
Association, not in its individual capacity, but solely as trustee on behalf
of GSAA Home Equity Trust 2006-9 (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, as master servicer (the "Master Servicer").
WHEREAS, Xxxxxxx Xxxxx Mortgage Company ("GSMC") and the
Servicer have entered into (i) the Servicing Agreement, dated as of November
1, 2005 (the "Servicing Agreement"), and (ii) the Amended and Restated Master
Mortgage Loan Purchase Agreement, dated as of November 1, 2005 (the "Sale
Agreement"), pursuant to which the Servicer sold to GSMC 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 and the Sale Agreement, to the Assignor
pursuant to an Assignment, Assumption and Recognition Agreement, dated as of
May 26, 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 May 1, 2006 (the "Trust Agreement"), among the Depositor, the
Trustee, Deutsche Bank National Trust Company, as a custodian, U.S. Bank
National Association, as a custodian, and JPMorgan Chase Bank, National
Association, as master servicer (in such capacity, the "Master Servicer"),
securities administrator (in such capacitiy, the "Securities Administrator")
and as a custodian, the Assignor will transfer the Mortgage Loans to the
Assignee, together with the Assignor's rights under the Servicing Agreement
and the Sale 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 and the Sale
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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 and the Sale
Agreement, to the extent relating to the Mortgage Loans from and after May 26,
2006, and the Servicer hereby acknowledges such assignment and assumption and
hereby agrees to the release of the Assignor from any obligations under the
Servicing Agreement and the Sale Agreement from and after May 26, 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
respective dates of the Servicing Agreement and the Sale Agreement.
(c) The Servicer and the Assignor shall have the right to
amend, modify or terminate the Servicing Agreement or the Sale 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 hereto as
Exhibit 2 is a true, accurate and complete copy of the Servicing Agreement,
(ii) attached hereto as Exhibit 3 is a true, accurate and complete copy of the
Sale Agreement, (iii) each of the Servicing Agreement and the Sale Agreement
is in full force and effect as of the date hereof, (iv) neither the Servicing
Agreement nor the Sale Agreement has been amended or modified in any respect,
except as pursuant to the GSMC Assignment Agreement and (v) no notice of
termination has been given to the Servicer under the Servicing Agreement or
the Sale Agreement. The Servicer, in its capacity as seller and/or servicer
under the Servicing Agreement and the Sale Agreement, further represents and
warrants that the representations and warranties contained in Section 2.1 of
the Servicing Agreement are true and correct as of the Closing Date (as such
term is defined in the Servicing Agreement), and the representations and
warranties regarding the Mortgage Loans contained in Section 3.02 of the Sale
Agreement were true and correct as of the Closing Date (as such term is
defined in the Sale 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, 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
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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 2006-9 Acct #507198670
(d) Monthly Reporting
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 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 Servicer other than those contained in the Servicing Agreement, the Sale
Agreement or this Assignment Agreement.
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(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 and
the Sale 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, the Sale
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,
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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. 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 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
Agreement. Notwithstanding the foregoing, however, if such breach is a
Qualification Defect as defined in the Sale Agreement, such cure or repurchase
must take place within 60 days of discovery of such Qualification Defect.
In the event the Servicer has breached a representation or
warranty under the Sale 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 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 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 Sale 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
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assign to the Assignor all of the Assignee's rights under the Sale Agreement,
but only insofar as the Sale 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.
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
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.
8. Continuing Effect. Except as contemplated hereby, the
Servicing Agreement and the Sale 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
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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 or the Sale 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,
GreenPoint Mortgage Funding, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxx
or such 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;
(c) in the case of the Trustee or 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 Trustee or 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 other address as may hereafter be furnished
by the Assignor.
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.
13. 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 2006-9, 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 2006-9, (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 2006-9, or be liable
for the breach or failure of any obligation, representation, warranty or
covenant made or undertaken by the GSAA Home Equity Trust 2006-9 under this
Assignment Agreement, the Trust Agreement or any related document.
[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.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, not in its
individual capacity but solely as Trustee
By: /s/ Xxxxxxxx X'Xxxxx
------------------------------------------
Name: Xxxxxxxx X'Xxxxx
Title: Vice President
GREENPOINT MORTGAGE FUNDING, INC.
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Name: Xxxxx Xxxxx
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
GreenPoint 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
Servicing Agreement
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[On File with the Depositor]
2-1
EXHIBIT 3
Sale Agreement
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[On File with the Depositor]
3-1
